Public Bill Committee

[Ann Winterton in the Chair]

Clause 12

Sexual orientation

Amendment moved (this day): 217, in clause 12, page 8, line 16, at end add
(3) Sexual orientation includes manifestations of that sexual orientation..(Dr. Evan Harris.)

This is to put clearly into statute existing case law stemming from eg Amicus vs Secretary of State where it was held that a religious organisation could not avoid sexual orientation discrimination by referring to lifestyle matters which were a lawful and direct expression of sexual orientation.

Ann Winterton: I remind the Committee that with this we are discussing amendment 220, in clause 13, page 9, line 27, at end insert
(7A) If the protected characteristic is sexual orientation, A discriminates against B if A treats B less favourably than A treats or would treat others on the basis of a manifestation of Bs sexual orientation..

This is to make explicit in statute the case law (eg from Amicus vs Secretary of State) which holds that discrimination against gay people on account of their gay life style or camp appearance (for example) is direct discrimination.

Evan Harris: I am pleased to welcome you to the Chair again, Lady Winterton. In the 20 seconds that I had before we adjourned our earlier sitting, I said that I thought we could get through the amendments quickly, as the main point behind them had been debated to a significant extent in our previous sitting.
The two amendments are essentially equivalent. One amends clause 12 and would provide that sexual orientation includes manifestations of sexual orientation. Another, possibly slightly better drafted amendment, starred amendment 237 in the amendment paper, amounts essentially to the same thing, which is that sexual orientation
includes manifestations of any such sexual orientation..
Amendment 220 on page 147 of the amendment paper amends clause 13 and deals with direct discrimination.
I explained earlier that the concern was to put the provisions clearly into statute law with the point of probing what the case law is in that respect, not only because it is right and proper that manifestations of sexual orientation areto quote the judge againintimately wrapped up with ones sexual orientation, but because it will help to make it clear to the public, and particularly to employers, that they cannot rely on a distinction between sexual conduct where it relates closely to sexual orientation and sexual orientation itself.
I explained that there is a request, bordering on an expectation, that employers will be able to do so when I referred to memorandum E14, which we received from the Catholic Bishops Conference. The memorandum says that the Catholic Bishops Conference would want to apply a conduct test, even for, it is implied,
a residential caretaker post if it involves routine contact with the local Catholic community.
It went on to say that
there is a whole range of posts, paid or voluntary, where it is essential that the Church has the right to prefer a candidate whose life is in accordance with its ethos; these might include, for example, youth workers, members of marriage preparation teams, and parish secretaries. What all these have in common is a pastoral, representative, or functional role where their effectiveness in the post for which they are being paid would be severely limited if their life were openly at variance with the teachings of the Church.
That is an interesting phrase. I do not know whether openly implies that it would not be an issue if they kept their private life to themselves, or whether the employer would seek to investigate their private life.

John Mason: Does the hon. Gentleman accept that the link between sexual orientation and manifestation varies? For some people, there is little gap between them, but for other people, particularly in the Catholic Church, where nuns and priests take a vow of celibacy, there is a large and distinct gap.

Evan Harris: I do not want to repeat everything that I explained previously, but where a post falls within paragraph 2(8) of schedule 9that includes proselytising roles such as nuns and priests, any representative function and any post predominantly involved with liturgy or the teaching of theologyan organisation would be entitled to discriminate on grounds of sexual orientation. That is not the question. The question is whether, even where those requirements are not met, such organisations can seek to say that they are discriminating not on grounds of sexual orientation, but mainly on conduct. I think that I have clarified that there is such an expectation in the written evidence and elsewhere.
It is important to stress the examples given by religious organisations in the Amicus case. In his judgment in Amicus and others v. the Secretary of State, given on 26 April 2004, the honourable Mr. Justice Richards gives examples of where religious organisations are very clearand, to their credit, they are very clear and consistent on this pointthat they want to cover conduct without falling foul of the normal sexual orientation provisions. For example, in paragraph 33, he quotes Roger Smith, who was then, and might still be, head of public policy at Christian Action Research and Education, stating:
Any inappropriate sexual activity on the part of an employee would be considered grounds for dismissal. This would include behaviour amounting to adultery from a married member of staff, and any other inappropriate sexual conduct by unmarried members of staff. This would include an unmarried employees sexual activity with a member of the opposite sex or with a member of the same sex.
It is clear that the wish is to discriminate on grounds of homosexual activity. Similarly, in paragraph 34, Mr. Justice Richards cites Mr. Martin Eden, director of strategic development for the Evangelical Alliance, saying:
We affirm Gods love and concern for humanity, including those with an orientation towards people of their own sex, but believe homoerotic sexual practice to be incompatible with His will, as revealed in scripture.
In paragraph 35, Hilary Reeves, director and chairman of the trustees of the Christian Schools Trust, talks about teachers, who are clearly not priests:
The teachers own lifestyle must be a righteous one, as defined above. That must, by definition, exclude from being a teacher in one of our schools a person whose lifestyle is known, or is reasonably believed, to include unrighteous acts as listed above.
Included in that is
sexual intercourse with a person other than ones spouse outside marriage, with a close member of ones family, or with a person of the same gender.
Leaving aside the comparison between lawful sexual activity with someone of the same sex and the unlawful activity of incest, and the equivalence, which those organisations are entitled to make, between homosexual activity in a faithful relationship with adultery, it is clear that they wish to include such conduct as grounds for dismissal. I am asking in both of these amendments for that to have to be justified on the grounds of sexual orientation.
During the oral evidence from William Fittall of the Church of England, when he was drawn on this matter, he said that
it is reasonable that restrictionswhether they be on marital history or whatevercan be part of the requirements.[Official Report, Equality Public Bill Committee, 9 June 2009; c. 69, Q127.]
That is, requirements which are imposed on people on religious grounds, the sort of requirements in schedule 9, paragraph 3. I asked him whether he meant gay people, and his answer, which can be read in columns 69 and 70, was clear that, even if it did not mean homosexuality, it did include homosexual conduct.
I have already read the ruling of Mr. Justice Richards in the previous debate, so I will not repeat that, but he makes clear in his conclusions, in paragraph 119 of his judgment, his view, which was not contested by either side, that
the protection against discrimination on grounds of sexual orientation relates as much to the manifestation of that orientation in the form of sexual behaviour as it does to sexuality as such.
He says that he has already mentioned that when looking generally at the fundamental rights issues in the case.
I hope, therefore, that the Committee recognises not only that there is a call for sexual conduct to be grounds for dismissal or a detrimental treatment, and to be seen as separate from sexual orientation, but that the case law is clear that that is not permitted. Furthermore, we should argue on principle as a Committee, and the House should take the view

John Mason: Is the hon. Gentleman suggesting that case law would overrule this statute?

Evan Harris: No. That is exactly the point I am making. I am asking that the statute make it clear what existing case law is, because that case was taken to clarify the statute. In a sense, the statute was clarified by that judgment. It was in the High Court, so it has precedence, but clarification would be helpful because, despite the judgment, there is still the assumption, or the request, that this sort of discrimination be permitted.
I think that the case law is clear. The intention of the Government at the time of the employment regulations on sexual orientation was clear. Even if it was not, the judge agreed with the Governments position in his conclusions on the case. The Government did not appeal on that point. The current intentions of the Government are clear on the point, but because this is a live issue and there is public debate, it would be wise to make that clear in statute as well. As I have said, this is not an attack on the beliefs of Churches, which are entitled to their beliefs. It is about protecting the right of gay people not to be discriminated against, in employment as well as in other areas, on the grounds of sexual orientation under the proxy of their conduct not being protected under sexual orientation legislation. That is what these probing amendments seek to make clear.

Mark Harper: It is good to see you in the Chair this afternoon, Lady Winterton. You missed our exciting debate on this very subject this morning. We, however, did not, so I will be brief.
The only point that I would like to make at this stage is that, as we did this morning, we appear to have quickly moved on to schedule 9, which we will debate in due course. I will only mention it briefly, Lady Winterton, so as not to test your patience. It seems to me that all the points that the hon. Member for Oxford, West and Abingdon has made, most of which I do not agree with, we can debate when we get to schedule 9; we can debate paragraphs 2 and 3 of that and the extent to which organisations can do the various things that he is suggesting they can. It seems that, under both this clause and the previous one, he is trying to pre-empt that debate and to set down much wider conditions than are necessary for this case.

Evan Harris: I am interrupting the hon. Gentleman, although he did not interrupt me. This does not apply just to schedule 9. I was using that as the best exemplar because in the provision of services there are restrictions on discrimination on the grounds of sexual orientation. I would not want to see, and I hope the Government would not want to see, people discriminating in the provision of services on the grounds of conduct that is intimately related to sexual orientation by claiming that it is not sexual orientation discrimination. In order to avoid having this debate under both those schedules and where it applies elsewhere, one has to have it under either the definitional clauses or under the clauses that describe direct discrimination. I do not think that there is any alternative, otherwise I would certainly have raised that when we considered the schedules as an alternative.

Mark Harper: I am grateful to the hon. Gentleman for clarifying what he is trying to do. The reason I think that what he is doing is faulty relates to the points that he is making in this debate, using schedule 9 as an example of why his amendments are justified. Having listened carefully to what he is saying about the paragraph in schedule 9 that details other requirements relating to religion or belief and what that would or would not allow someone to do, I am not clear that organisations would be able to do what he says they would be able to do. The wording of the schedule will not allow people to do what he is complaining about. Therefore, I do not think that his justification for these changes is sensible. I am just picking up his one point. I do not wish to sound like a broken record.
I also want to echo the point made by the hon. Member for Glasgow, East. From a religious perspective, referring to the particular Church he mentioned, the Catholic Church, there clearly is a difference between sexual orientation and sexual practice, particularly in the roles of a proselytising nature, priests and nuns and so forth, given the vow of celibacy that priests and nuns take. For that religious organisation, there is a clear difference and I would have thought that a religious organisation above all would be capable of seeing the difference. I am not persuaded by either the lengthy discussion we had this morning or by the hon. Member for Oxford, West and Abingdons argument that these two amendments should be carried by the Committee. My final point, on which I am sure the Solicitor-General will be in agreement, is that I am clear that he does not speak for the Government.

Vera Baird: I second that.
I shall keep this simple, I hope. These amendments seek to make explicit the fact that it is unlawful to discriminate against a person on grounds of manifestations of their sexual orientationappearance, lifestyle, the people they see, the places they go. However, the hon. Member for Oxford, West and Abingdon answers his own amendment, because it is absolutely the case that Amicus v. the Secretary of State for Trade and Industry has interpreted sexual orientation regulations to say that such orientation includes manifestations of sexual orientation. We have replicated the words in those regulations in the Bill, in so far as they are relevant. Consequently, there is simply no need to do any more; the law is absolutely clear.
By way of a footnote, the amendment would introduce a needless anomaly, because we would put manifestation into the definition of one protected characteristic without putting it into any others. There might be manifestations of being a white British person, I suppose; always singing Down at the old Bull and Bush, or going foxhunting, or whatever we do.

Evan Harris: I accept the Ministers point that the amendment would bring manifestation into just one protected characteristic. I agree with her because, as she said, I pointed out in my contribution that the case law is clear. I was making the point that there might be some merit in having the statute clear because of the demand for that, since not every employer is able to access the case law as easily as they would the statute. It might be particularly relevant in this area, which is the only one, as far as I know, where it is such a live issue. No one can doubt that it is a live issue after the contributions that our witnesses and, indeed, other hon. Members have made. Is there some merit, then, in clarifying the statute, as well as what the Minister said about the law?

Vera Baird: No. Quite honestly, the hon. Gentleman is stretching it now. When we debate schedule 9, and whether the exceptions are wide enough or too narrow, the hon. Gentleman can raise those issues againand I have a dreadful feeling that he will. However, the law is plain. The regulations have been interpreted by the court. That is how our legal system works. The rule is that sexual orientation includes manifestations of itself, and that would be unlawful discrimination. There is no need for more.

Evan Harris: I note what the Minister said, and I am not surprised that she recognises what the law says, which is in agreement with the point that my amendment makes. That should give other hon. Members pause to consider what implications that has. I recognise her position that, just because something is made clear in case law, it does not have to be replicated in statute law. However, in defence of my approach, that is not always the approach that the Government take. They sometimes seek the opportunity to put case law into statute, as they quite rightly have with paragraph 2(8) of schedule 9. Nevertheless, on hearing what the Minister says I am quite happy to beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 12 ordered to stand part of the Bill.

Clause 13

Direct discrimination

Mark Harper: I beg to move amendment 7, in clause 13, page 9, line 5, leave out because of and insert on grounds of.

Ann Winterton: With this it will be convenient to discuss amendment 132, in clause 13, page 9, line 5, leave out because of and insert on the grounds of.

An amendment to revert the causality of discrimination to pre-Equality Bill wording.

Mark Harper: These measures should need only a relatively brief debate. My amendment is similar in nature to amendment 132, tabled by the Liberal Democrats, and it would leave the words because of out of clause 13 and replace them with on grounds of. That would effectively put the wording in the law back to what it is at the moment. The reason for doing that is twofold.
First, the on the grounds of formulation is consistent with all existing legislation and with European equalities legislation. It is the language that existing case law is already based on, and it therefore gives certainty.

Tim Boswell: The cardinal point, and probably the only comment that I need make on this amendment, is that any divergence or departure from the existing on the grounds of is likely to give rise to legal argument. As my hon. Friend has already said, it may well create further uncertainty or perverse or difficult judgments that eventually have to be amended. It would be far better to stick with what has been seen to work since the introduction of disability discrimination in law.

Mark Harper: My hon. Friend is absolutely right. This is the only reason given in the explanatory notes for changing the wording:
This change in wording does not change the legal meaning of the definition, but rather is designed to make it more accessible to the ordinary user of the Bill.
I am not quite sure who the ordinary user of the Bill is and it seems to me that the ordinary users of most Acts of Parliament are lawyers, who would be perfectly capable of understanding either formulation. However, it seems that there is a problem if something is changed that is well recognisedwe may set up lots of unforeseen consequences.
Indeed, the Equality and Human Rights Commission is supportive of amendment 7, as is Citizens Advice, so there is clearly a fair bit of concern that there may well be some negative consequences in changing the wording and I am unconvinced by the reason given. The Minister says in the explanatory notes that it does not change the legal position, and she will no doubt repeat that, but given that there are no significant benefits and there are risks that are clearly felt by a number of organisations, will she reflect on whether that risk is worth taking?
The second reasonthis is where I suspect there is an argument about whether the measure does or does not change the legal definitionis that the use of the word because may indicate that it would have to be established that the discriminator consciously intended to treat someone less favourably on the protected grounds. On the current legal position, proving intention is not required, so the because formulation may raise the threshold for proving discrimination claims in that the complainant may be required to prove a conscious motivation to discriminate. That is what lies behind the concern from those organisations that this measure may represent an inadvertent change in the lawthey accept that it is inadvertent.
The final concern is that treating someone less favourably because of a protected characteristic might be read as meaning that the protected characteristic must be the whole or the main reason. Under current law, the protected grounds should in no sense whatever be the treatment in question, so covering less favourable treatment, which is only partly attributable to the protected characteristic. Putting the word because in the Bill could change the established understanding of what is required, so introducing, as my hon. Friend the Member for Daventry said, a lack of clarity, which may also provoke more unnecessary legal challenges.
The Minister really needs to do the job of explaining not just why the Government believe that this measure does not change the law, but why a change of wording is necessary. Given that the Bill is carrying over existing legislation, making a change requires more than the Government saying it does not make any difference; they need a good reason for making the change, given that some organisations think there are significant risks involved. I will listen carefully to the Minister, and if we are not persuaded by what she says we may seek to test the mood of the Committee.

Lynne Featherstone: I shall speak to Liberal Democrat amendment 132, which is not greatly different from the Conservative amendment. It differs only in the word the, which we are quite happy to go without. We will support the Conservative amendment, because we agree that this measure might open the door to legal wrangles.

Tim Boswell: I am grateful to the hon. Lady for her slight variant on our amendment, because I think it is the first time in recorded history that I have ever spotted the Liberal Democrats using a definite article about anything.

Lynne Featherstone: I do not knowthis place! Talk about reform! Given that the measure might open some legal argument or wrangle, and given that the existing wording has been the subject of much testing and is tried and tested, it seems unnecessary to open it up to further interpretation of meaning when that meaning is already proven in case law. To get rid of that uncertainty, we will support the Conservative amendment.

Vera Baird: One of the key objectives of the Bill is to simplify the law and make it more accessible. I do not think for one minute that the only people who are going to read it are lawyers, the easy-read bit at least. We deliberately put the plain Englishthe explanatory notesface to face with the necessary legalese to make the Bill accessible to people way beyond lawyers. With that principle in mind, it makes sense to talk in ordinary English language.
The word because is much more natural when one looks at the reason for something. If someone is asked, Why did you do such a thing?, the answer will mostly likely be, Because. It is highly unlikely that people will say on the grounds of, and that is the point. However, the two terms mean the same thing. I do not know what they mean inI am glad that the hon. Member for Oxford, West and Abingdon is here to hear me mention it againthe Evan Harris English Dictionary of Peculiar Terminology, but in the Oxford English Dictionary, the word because is defined thus:
By reason of, on account of
on the grounds of. It is absolutely spot on and synonymous. I do not think that it can be argued that there is any difference of meaningthey are absolutely synonymous.
The question in a case of direct discrimination is, Why was he treated in that way? The answer would be, Because, and that is what we need to capture. It need not give rise to any legal wrangles. The courts are now rejecting suggestions that a change in language necessarily implies a change of meaning. There is no change of meaning. I have said it twice; perhaps I have said three times now. It is very clear that there is no change of meaning.
In a 2005 case, Regina v. Z in the House of Lords, Lord Woolf said:
Techniques in drafting of section 3 of the 2000 Act and section 19(3) of the 1973 Act differ. Section 3(1) of the 2000 Act is drafted more succinctly and more clearly than its predecessor. It is in a crisper, more contemporary style. However, there is no reason to think that the difference in style means that it should be interpreted in any different way from its predecessor in the 1973 Act.
All the less reason for any court to think that it should be interpreted differently. Now I am saying for the fourth time: there is no change in the meaning from the change of words.

Tim Boswell: I am grateful to the Solicitor-General, not least for the assurance that she has given the Committee, which no doubt will be remembered and may even appear in the courts in due course. It occurs to meI defer to her legal knowledgethat on the grounds of is, in a sense, a more specific set of tests referring to particular characteristics of the alleged discrimination. It may well be that there is a concern where there is a multiple complexity of factors involving discrimination or the possibility of discrimination, some of which may be on grounds of the protected characteristics. Others might be much more at large. Is the Minister satisfied that the new formulation reflects the balance of those as well? As far as I am concerned, if there is discrimination it is indefensible whatever the legal wording, and I hope we are not reversing that in anything we are considering.

Vera Baird: Of course we are not. The hon. Gentleman is absolutely right. There are two specific examples where it has been suggested that the measure might change the meaning. Let me deal with those in a moment. I also add that there will be some guidance and a rolling programme of training on the Bill in general to make that point for county court and employment tribunal judges.
The first of the two specific issues that were raised is whether because of, unlike on the grounds of, may imply the need for intentthat is the concern of Conservative Members. The answer is no: on the grounds of and because of are both indicative of causation, but they do not imply required consent. It is perfectly possible to characterise direct discrimination as being because of a protected characteristic. The courts will be able to reject the suggestion that because the word has changed, the meaning has too, as I have just explained through the mouth of Lord Woolf.
The other express concern is that, to be discriminatory, treatment does not have to be based only on discriminationit could happen a number of reasons of which discrimination is one. Would changing on the grounds of to because of mean that the discrimination need be the only ground for less favourable treatment? Again, the answer is no, because they are totally synonymous and there is no change in the nature of the essential question of why a person claiming direct discrimination was treated in the way that he or she was.
The Bill is more modern and exactly as Lord Woolf decided. Its style is crisper and more contemporary than that of more ancient law. It is good to change and keep up. When a new Equality Bill is introduced to help people with their rights at work or when they feel that they are being discriminated against, they want to be able to look at one page for the technical stuff and the other page for the explanation. That is why we have put in the plain English: to encourage people to look at it. There is no point in passing the Bill, after a long Committee stage, if it just hangs around on the shelf and is only brought out by lawyers to rebut discrimination. The point of the Bill is to change the culture and to move forward the whole cause of equality. As we shall discuss presently, it will require public authorities to drive the equalities agenda through their policies. We want it to be as accessible as possible, and this is just a small example of how we can do that. I assure the Committee that it will not be to the detriment of anyones rights.

Evan Harris: I am grateful for the opportunity to respond to the Ministers dictionary definition, particularly given that she used my name in reference to it. She read out the definition of because of. It had three parts, one of which was by reason of and another on the grounds of. It does not necessarily follow that because a new word includes another formulation that it is synonymous with that formulation. It could include it, but go further. Regardless of what the courts might determine, people reading the Bill might think that by reason of is different from on the grounds of. Reason implies a cognitive action, and that might cover intent, which the Minister is keen to avoid. I do not think that she has made the case that because of is synonymous with on the grounds of by reason of that dictionary definition. I do not think that the Government will find it easy to defend their position, well intentioned though it might be, during the Bills progress, including in another place, because of that problemand on the grounds of that problem.

Vera Baird: I want to make it very clear that those three are synonyms. It is not about one including the two; it is about all three meaning the same.

Mark Harper: I listened very carefully to the Ministers comments and to the intervention of the hon. Member for Oxford, West and Abingdon. It is perfectly sensible for the explanatory notes to explain the legal terminology in plain English. I do not know how many Committee members have ploughed through both parts of the Bill, but, to be perfectly frank, the words crisp and contemporary did not leap out at me as I went through the 200 or so clauses. It is a perfectly good Bill, but crisp and contemporary it is not. It uses much language, such as protected characteristic, that one does not generally hear down the pub. Unless, of course, the Solicitor-Generals local pubs are different from those in the Forest of Dean.

Vera Baird: Probably not.

Mark Harper: We have some wonderful pubs in the Forest of Dean, and the hon. and learned Lady is always welcome to come and sample them to boost our tourism industry. [Interruption.] I acknowledge her reciprocal invitation. I am not convinced by the Ministers argument, however, which I do not think was a very good one, so I would like to test the Committees opinion.

Question put, That the amendment be made.

The Committee divided: Ayes 8, Noes 10.

Question accordingly negatived.

Lynne Featherstone: I beg to move amendment 130, in clause 13, page 9, line 5, leave out a and insert one or more than one.

An amendment to permit claims of direct discrimination and harassment on multiple form of discrimination.

Ann Winterton: With this it will be convenient to discuss amendment 131, in clause 24, page 17, line 18, leave out a and insert one or more than one.

An amendment to permit claims of direct discrimination and harassment on multiple form of discrimination.

Lynne Featherstone: The amendment would permit a claim of direct discrimination and harassment for multiple forms of discrimination. I know that the Government are consulting on the matter but, interestingly, the consultation document prompts this question: on what principle of justice or fairness should new legislation aimed at fairness deliberately exclude protection against discrimination based on a combination of two or more characteristics, discrimination against which are individually prohibited, because it would be burdensome to business? The key is that justice is not about whether business finds something burdensome to act equitably. The purpose of the measure must be justice.
The business community has concerns about the increase in litigation, because there could be multiple bites of the discrimination cherry. It is concerned that that would increase settlement costs and that it would be cheaper to settle than to go to court. Under the Bill, cases of direct discrimination and harassment on multiple forms of discrimination are not outlawed, but we think they ought to be, and the Government are consulting on the issue. However, all organisations seem to think that such a measure is necessary, so I do not understand the need to consult again.
My reading of the situation is that the Government believe that combining two protective characteristics would be adequate, because it would cover most claims, but that might result in permitting combinations of more protective characteristics. In response to the Discrimination Law Review consultation, public concern that the current law does not adequately protect those who experience multiple discrimination was identified. I am sure the Minister can think of many such examples.
If we amended the wording from a to
one or more than one,
a claimant would be able to bring the appropriate claim for discrimination on more than one ground, and on any number of grounds that were deemed appropriate. We need to give voice to that now, because we do not believe that we need to wait for consultation. There has already been two years consultation on this.

Mark Harper: I shall be very brief. Having listened to the evidence, I believe that the hon. Lady is slightly wrong in the way in which she characterises what the Government have done. I read their written statement and their consultation document. They acknowledged that a great deal of the feedback to the Discrimination Law Review said that there should be a multiple discrimination provision, as the hon. Lady says. That is why they made a proposal enabling claims that combine two protected characteristics in the consultation document. I read both the written statement and the discussion document that the Government published in April and thought that they made a great deal of sense. We will obviously look carefully at the specific legislative proposals that the Government introduce.
During the evidence-taking session, there was a discussion about whether combining two characteristics made sense, or whether more were needed. There was general agreement that it should be possible to combine two, but there was not much evidence of cases where two would not enable the protection. There did not seem to be much evidence to support having more than two characteristics, given the complexity involved and the benefits that would be derived.
Given the fact that the law should be based on dealing with real, identified problems, the proposal to bring in multiple discrimination on two protected characteristics seems to be the right one. If, in future cases, there are many situations involving more grounds, which the Governments proposal would not solve, the matter could be looked at again. From the evidence that we heard in Committee, the Governments approach seems sensible. The hon. Ladys amendment would insert more than one, implying that all the protected characteristics could be brought together, and regrettably, we are not able to support it.

Lynne Featherstone: I thank the hon. Gentleman for those remarks. This is a question of striking the right balance. I believe that the law would not become more complex because that complexity is already there as a consequence of the existence of the strands. Intersectional cases would become less complex, because the law would sit more naturally and suit the facts. Again, the fact that something is more complex or burdensome should not be the guiding line as to how many strands, protective characteristics or multiple discriminations are allowable. However, I take the hon. Gentlemans point.

Mark Harper: That is important, because the Bill is not just about what the law says, but about what happens in reality. Part of the benefit of bringing different pieces of discrimination law together in a more straightforward Bill, is that protection will not be offered only by the law. The reality on the ground will be that all those organisations that have to behave in accordance with the lawsuch as those providing goods or services, or employerswill find it easy to understand. The problem with making something complex, particularly if it is disproportionate to the wrong that we are trying to solve, is that in making it more complex, it becomes more difficult. There might be a purer basis in law, which we would all be happy with, but in practice, it might more difficult to deliver the rights and protections that are so important for the people we are trying to look after.

Lynne Featherstone: I suspect that the Government are not going to accept the amendment, and I will withdraw it after the Minister has responded. We need to work on that balance. [Interruption.] Sorry?

Vera Baird: Why not withdraw it now?

Lynne Featherstone: I would like to hear what the Minister has to say in response.

Vera Baird: The amendment would have the effect of allowing claims of direct discrimination and harassment to combine in an unlimited number of any or all protected characteristics. The great mathematicians advising me have worked out that covering all the possible combinations would give 511 possible combinations of action, which not surprisingly, is rather a worry for business. It would be highly complex, most people would find it excessively burdensome, and it would leave individuals wondering where and how on earth they could exercise their rights in the face of such a lot of possible combinations.
We recently published a document. There was a good deal of discussion in the earlier review, as the hon. Member for Forest of Dean has said, and the intention of the new document, Equality Bill: Assessing the impact of a multiple discrimination provision was exactly as expressed in its title. A clause in the document limits it to two grounds. The point was to ask a specific question of a particular business and other interested parties about what the impact of the clause on that limited number of grounds would be, so as to provide a some clear understanding about the l scope of the measure.
In short, the hon. Ladys proposal would be unduly complex and excessively burdensome and, since she has let the cat out of the bag by saying that she is going to withdraw it, I shall not add any more detail. However, our discussion document closed for responses last Friday. We are looking at the feedback we have received and, once we have done so, we will make a decision about whether protection from multiple discrimination, as set out in our document, can be effective, workable and proportionate. If it can, we will introduce it.

Mark Harper: On timing, will the Minister confirm whether it is subject to the question of how long it takes to go through those responses? Do the Government intend to table an amendment to the Bill on Report in the Commons, or wait until it goes to the other place? On a procedural point, I think it would be better to allow the elected House to consider it first, if that is possible within the timing.

Vera Baird: Yes, it is our ambition to do it hereideally while the Committee is still sitting. I am not sure whether we will manage that or not, but we want to do it here if it is to be done.

Lynne Featherstone: I listened carefully to the Minister and thank her for her response. Regardless of whether or not I withdraw the amendment, it is important to have her thoughts on the matter on the record. It is a matter of judgment and I accept the Ministers view that the best way forward is to look at the combination of two of the strands. I also welcome the fact that the Commons, rather than the Lords, will be able to scrutinise the measure so, for now, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

John Penrose: I beg to move amendment 194, in clause 13, page 9, line 6, at end insert
(1A) Discrimination does not include marketing or promoting activities targeted at a particular group of people whether or not they share a protected characteristic..
It is a pleasure to have my first opportunity to make a contribution under your chairwomanship, Lady Winterton.

Ann Winterton: Chairmanship.

John Penrose: I stand corrected. Amendment 194 states that discrimination does not include marketing or promoting activities targeted at a particular group of people, whether or not they share a protected characteristic. It is tabled primarily to elicit some reassurance from the Minister that routine, perfectly normal and perfectly lawful business activities will remain as such.
I am sure the Minister is well aware that it is standard business practice to segment markets, and to target particular groups on the basis of sound business principles. I hope that she will reassure us that that can continue and that there will be no question, in the future, of subjecting businesses marketing plans to rigorous legal scrutiny. They have not required that scrutiny in the past.
There are two issues: one is market targeting, the other is limiting access to a product or service. The second one is different and is deliberately not part of the amendmentthat is something for separate discussion later. There are, however, many companies whose business models could be cast into doubt if we do not clarify this proposal. There could be all sorts of dangerous and worrying implications if we do not nail this down.

Tim Boswell: Does my hon. Friend agree that one of the difficulties is that any discrimination likely to be alleged will probably be indirect? For instance, a marketing programme might not necessarily be expressed as only for the over-70s, or whatever, but in practice it might well add up to that as a result of careful market segmentation. People would then say, Ah, this is discrimination.

John Penrose: My hon. Friend has summed it up neatlywe tabled the amendment for that reason, and to give the Minister a chance to allay any fears among investors, management and staff in many companies up and down the country. There are many examples. We have heard evidence and submissions from companies such as Saga, which specialises in marketing to, and providing holidays for, people above a certain age. Club 18-30 self-evidently targets its products at the other age range, and Sheilas Wheels markets insurance to women drivers, as well as a series of other people. Those companies have particular market aims and are targeting their advertising at certain segments of the market. I am not sure, but it is entirely possible there are holiday companies which market their products and aim their promotional activities at Muslims wishing to go on the Hajj. Those companies would be legitimate and we would not want to stop them. In my constituency of Weston-super-Mare, there is a hotel which specialises in holidays and respite for disabled people and their carers. Clearly, everybody would want that to be perfectly legitimate and allowable in future.

Lynne Featherstone: This is not an area I am particularly familiar with. If a golf club wanted to attract members, but only gave incentives or direct marketing to white people, would that cross the line in any way?

John Penrose: I am hoping the Minister will sketch out where she thinks the Bill already does this and provide some guidance as to what is allowable, what will continue to be allowable, and where the Bill draws the line. That is why we have tabled the amendment. I am hoping it is straightforward for the Minister to give us comfort and reassurance, but it is important that we get this on the record at an early stage in the Bills passage so that investors, management and staff in any affected business can be reassured in future.

Vera Baird: Service providers want to maximise business, and depending on the nature of it, that will entail legitimate targeting of campaigns at certain groups. Like the businesses that have been quoted, another example is a company that specialises in selling make-up tailored to black women. They should be perfectly entitled to target that audience by, for instance, advertising in the black press or using photographs of black models. The car insurance company which was quoted is an example that I would have used too.
It would be where an advert discriminates against a person with a protected characteristic that it would be unlawful. If the make-up advert denigrated white women, or the car insurance advert indicated that lesbians need not apply, such marketing would fall foul of the existing legislation and of the Bill. Of course, the EHRC would take action in such a case.
Technically speaking, marketing and promotion is not a service so it is not within the Bills scope, unless it is discriminatory in the way I have described. People receive flyers and read adverts before they use the service. It is only at the point of the customers engagement with the service provider that it complies with part 3 of the Bill.

John Penrose: Does the Minister accept that many companies specialise within the marketing, advertising and promotional world, advising those who produce the ads and promotional activities she is describing? If they are participating in creating those promotional vehicles, might they none the less be captured in that way?

Vera Baird: I do not know about that. The real point is that if any marketing or promotion is discriminatory, it would be in the scope of the Bill. It is discrimination so would come in as such. However, the Bill deals with goods, facilities and services; advertising is not within that definition. It is worth noting that the stakeholders he alluded torepresenting financial services and the age interesthave concluded readily that marketing to specific age groups is no problem. They are not asking for any change from this legislation.

Tim Boswell: Perhaps the Solicitor-General could help on the concern which built up in my mind as she answered. It is about the nature of the campaign itself, picking up the point that the hon. Member for Hornsey and Wood Green made. Suppose somebodyit might be for the best of motives, or it might notproduces a campaign that is presented as a general marketing campaign but uses models who are all white. I am not talking about two or three, but about a large population. One might reasonably assume that something is going on; they are either totally culturally unaware, or they are wilfully trying to misrepresent the population. Is that activity discriminatory by itself? If so, with whom, as no service is being provided, and what action can be taken about it?

Vera Baird: In so far as it was discriminatory, it would be discriminatory not so much for being targeted at a group but for excluding a group. If it excluded or denigrated a group as it went along praising its target group, that would be discrimination in the ordinary way, and all the provisions that we are used to would fall into place exactly as they would with any other kind of discrimination. There is adequate protection. Targeting is not a problem as such, so there is no need for the amendment. I therefore invite the hon. Member for Weston-super-Mare to withdraw it.

John Penrose: I think I understand the Minister to have saidI will play it back to her to ensure that we have got it absolutely clearlythat provided that promotional or marketing activities are done constructively and positively to emphasise the benefits of the thing being promoted and the group to which it is being promoted, rather than running down anyone else, any company that indulges in market segmentation or targeted marketing should be on the right side of the law. If that is the case and I have understood it correctlyI think that I saw the Minister nodding just now

Vera Baird: I am just waiting for inspiration.

John Penrose: Perhaps I should talk slowly until inspiration arrives, in the shape of bits of paper from her advisers. If I have understood it correctly, we would be willing to accept it. I am, however, hopeful that the Minister will be able to confirm that before I can say genuinely that I am willing to withdraw the amendment.

Tim Boswell: Will my hon. Friend give way?

John Penrose: I would be delighted to.

Tim Boswell: I sensed that my hon. Friend might require some assistance. While this is going on, will he consider alsoI am still not wholly satisfied by the Solicitor-Generals responsethat when I described certain conditions that involved a marketing campaign and not the provision of a good or service, she said firmly that if it excluded a group of the population maliciously or, as I suggested, due to a lack of cultural awareness, it would somehow be covered by discrimination? However, if it is not directly part of the provision of goods or services, how could it be? Will he reflect on that, and perhaps reflect my concerns to her?

John Penrose: I thank my hon. Friend. I see that inspiration appears to have struck the Minister; at least, a piece of paper has been passed to her. If she is willing to reply to us, that would be helpful.

Vera Baird: I hope that the hon. Gentleman noticed how indirectly the paper was sent to me. In a nutshell, targeting is fine as long as it does not exclude or disadvantage people. I hope that that is clear enough.

John Penrose: I thank the Minister for that. That implies an approach in the Bill similar to that taken elsewhere to positive action. It is okay to target particular groups of people in a positive way, but denigrating them or running them down is not. On that basis, and having had that clear instruction and reaction from the Minister, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Evan Harris: I beg to move amendment 222, in clause 13, page 9, line 6, at end insert
(1A) This section applies to a person (B) who is perceived by A to have a protected characteristic, regardless of whether B does in fact have that characteristic.
(1B) This section applies to a person (B) who has an association with a person who has a protected characteristic..

This is put into statute two provisions which are explicitly and implicitly provided for by the relevant directive and by case law.
This is an important amendment that deals with the question of discrimination based on association and perception. Some of the points were raised on Second Reading, so I will not go back to the beginning. I draw the Committees attention to the ruling in the European Court of Justice case of Coleman v. Attridge Law. The judgment was that discrimination on the basis of association in respect of disabilityI think that the same thing should apply to age, in a read-across to the need to care for old or young peopleneeds to be covered, and indeed is covered, in European law.
I note that on Second Reading and at the time of the judgment, the Government said that they agreed and had no problem with that. Furthermore, the explanatory notes state in paragraph 71 that the definition in clause 13
is broad enough to cover cases where the less favourable treatment is because of the victims association with someone who has that characteristic (for example, is disabled), or because the victim is wrongly thought to have it (for example, a particular religious belief).
That is a perception and, in that case, a wrong perception.
The point of the amendment is to probe initially, depending on the Ministers response, the reasons why the Government are not taking the opportunity to set it out clearly in the statute that direct discrimination is to cover discrimination based on association or perception. That seems a straightforward thing to do, although if the Minister identifies problems with the phrasing of the amendment, it is unlikely that I shall seek to defend the words in it, but if she does not, the question remains why it is not in the Bill.
A number of organisations share the view that I have expressed; it is not an unusual view. For example, the Discrimination Law Association states that it is important for these prohibited forms of discriminationdiscrimination on the basis of association or perception
to be referred to explicitly on the face of the legislation. In other words, the prohibition on discrimination by way of association and/or by reason of perception should be expressly stated.
The Equality Commission for Northern Ireland makes exactly the same point. It says that the commission recommends that the Bill should expressly state that discrimination due to perception and association is unlawful in relation to all protected characteristics. Carers UK says that it believes that carers, employers and even lawyers who are not experts in discrimination law will have problems interpreting and applying the provisions unless that is expressly stated.
Those organisations have direct experience of dealing with these matters and they see merit in placing the measure in the Bill. The Government must have considered that and there must be a reason for not doing it. Given the unanimity of view of those organisations, it would have to be a good reason.
The EHRC makes exactly the same point in its briefing. It is concerned that the measure is not in the Bill. It therefore completes a set of four groups of people who are concerned that it is not included. In fact, it makes the point that the explanatory notes do not form part of the Bill and have not been endorsed by Parliament; they are not, and are not meant to be, a comprehensive description of the Bill. Therefore, relying on the explanatory notes is not ideal, and although ministerial statements are useful, it is very difficult to ask people who need to know about this provision to be aware of every ministerial statement.
The EHRC states that it would also like to see in the Bill express protection from discrimination based on association and perception generally. It says that for a number of reasons and it is important to enumerate them. First, like the other organisations, the EHRC believes that it is important to make it clear that that is covered as part of an educational experience, although I know that that alone does not warrant the inclusion of a measure in the Bill. Secondly, it is concerned that there may otherwise be perceived to be some regression. It says that discrimination because someone is perceived to be or is associated with someone from a particular racial group or religion or belief group or sexual orientation is currently prohibited in some areas, and the concern would be that if the because languagewe have already debated that, but not on this pointwas not interpreted by the courts as including perception or association, that would run the risk of regression.
I do not think that that is a particularly strong point, because the courts are clearly bound by what the Minister would describe as the intention of Parliament and, indeed, the ruling of the higher court, at least in the case of Coleman. However, the EHRC also makes the point, which I agree withthis point is important, given what the Minister said about gender reassignmentthat perception is so much a factor in respect of protection on the grounds of gender reassignment, especially given how unhappy some of us are with the existing wording, that it is essential that it is very clearly understood that the protection is there in respect of the perception of someone as undergoing gender reassignment, even if they are not or are not proposing to be because, for example, they are merely cross-dressing and they do not do so all the time with a view to going on a journey, as the Minister calls it, permanently to change their gender identity.
The Joint Committee on Human Rights, which has put on its website a copy of a letter that it sent to the Minister, asked the Government the same question: why is that provision not included in the Bill?
It is appropriate to ask now, rather than in a clause stand part debate, about clause 13(4), which specifies:
If the protected characteristic is marriage and civil partnership,
as far as work is concernedemploymentpeople cannot claim direct discrimination by association, because it is only where
B is married or a civil partner.
The explanatory note says, without explanation, so it is only a partially explanatory note, that
a different approach applies where the reason for the treatment is marriage or civil partnership, in which case only less favourable treatment because of the victims status amounts to discrimination.
I think that that precludes discrimination by association. There may be a good reason for that, but it is not explained in the explanatory notes, which is unfortunate.
That is the basis for my amendment, which I hope the Minister will look kindly on, because, although it may not be the first preference in drafting the Bill, I do not believe that it does any harm, and it will certainly satisfy a number of organisations that have expressed concerns.

Mark Harper: I shall be brief. We touched on perceived disability and discrimination by association when debating some of the amendments that I tabled on clause 6 and, in that case, the Ministers explanation was satisfactory, so I asked leave to withdraw them.
The hon. Member for Oxford, West and Abingdon makes some good points. Both the Ministers explanation and the explanatory note say that the wording in the Bill is clear enough and that it covers what the hon. Gentleman mentioned, but state some concerns that are shared widely. I will listen with great care to the Ministers detailed explanation about whether the wording in clause 13 adequately captures the points raised by the hon. Gentleman.

Vera Baird: The amendment would make it explicit that direct discrimination includes less favourable treatment of someone because of their association with somebody who has a particular protected characteristic, or because they themselves are perceived, rightly or wrongly, to have that characteristic.
The clause derives, in part, as the hon. Member for Oxford, West and Abingdon said, from Coleman v. Attridge Law in the European Court of Justice, which said that the European directives definition of direct discrimination implicitly includes the concept of discrimination by association. Although the clause derives from that in partit is written with large exclamation marks around it at the moment because that is quite a recent decisionin 1975, or thereabouts, our domestic courts reached the same conclusion, which was that, under the Race Relations Act 1976, direct discrimination implicitly included discrimination by association. Our own courts have also held that the definition implicitly includes the concept of discrimination by perception in a different case in 1983.
I say that because we do not have something absolutely new and we are not putting it explicitly into the Bill, which the hon. Gentleman could have argued would have been dangerous, because something new needs to be written in large letters. I used that argument when I talked about listing the people to whom the socio-economic duty was due, saying, It is a new duty; let us list the people that it applies to so that everyone knows who is in and who is out. That would have been an argument had those two domestic judgments, both now more than 20 years old, not injected that interpretation into our domestic law, pointing towards the conclusion in Coleman arrived at by the European Court.
The Bills definition of direct discrimination includes those concepts. I am pretty ready to accept, honestly, that at the very first look at the clauses there is a transparency argument for making the protection explicit, as some definitions of direct discrimination in current legislation do. However, the reason that we have not is to widen the ambit of clause 13, being careful not to narrow it inadvertently.
Before I explain what might at the moment look like an odd concept, I shall say one more thing, which is that we want people to be able to access their rights. I have spoken about that recently, in saying that simplifying the language is an important component of encouraging people to look, and to see what they are entitled to. One might say, Well, let us put in association and perception, so that they can see what their rights are in those connections. For the reason that I am about to set out, it is not so wise to do that in this case as it was in the question of because. Also, I venture to suggest that discrimination by association or discrimination by perception are quite complex ways of expressing something anyway, and may not throw all that much light on what they are about for the lay person.
Here is the core of why we do not think that we should accept the amendment. The because of turn of phrase in clause 13 is broad enough and is intended to be broad enough to cover much more than just cases in which the less favourable treatment is due to the victims association with someone who has the characteristic or because the victim is wrongly thought to have that characteristic. The formulation is intended to and does cover cases, for instance, of less favourable treatment because of a refusal to comply with instructions to discriminate. It is also intended and does cover a case in which someone is treated as if they had a protected characteristic that they neither have nor are perceived to have at the time.
Direct discrimination has a number of formsa lot of different forms. Even after the Bill, what the definition covers will continue to evolve through the case law. That is really the point. We do not want, by specifying particular kinds of direct discrimination, to imply that we are excluding kinds of discrimination that might come about in a situation that we have simply not foreseen when setting out the clause. So, we favour what we see as a broad formulation.
The amendment is not perfect, as has been said, but it has been drafted in such a way as not to preclude the clauses application to other forms of direct discrimination. However, there is always that lawyerly problemI forget how many members of the Committee, as well me, are lawyers. I know that the Parliamentary Secretary, Government Equalities Office, is. The danger is that, if we name something in a section of a statute, by implication we exclude or devalue things that are not named. In a nutshell, that is the thinking behind not putting in association or perception expressly.
In the example quoted by the hon. Member for Oxford, West and Abingdon, in clause 13(4), he would sayhe may be rightthat discrimination by association or by perception are excluded. In a way, by analogy with the arguments that I have just launched, that is a powerful implication that association and perception are included in all other aspects of clause 13. However, because there is a change in perception and because it is so central to the world of carers that the law has now emerged and crystallised in the Bill after the Coleman case, we will promote it as strongly as we can to ensure that everyone knows their rights. Outside the ambit of making the Bill clear, the availability of the new rights needs to be made clear. People probably do not need to worry about that because Carers UK has very much got the bit between its teeth. It is pleased with these changes in the law, and it will certainly ensure that the caring community knows that it will now have these new rights. We will do everything that we can to support the ambition of making the rights transparent.
I hope that the hon. Gentleman will be content to withdraw his amendment because of, first, my clear statement that association and perception are included in the definition in clause 13 and, secondly, the danger that I have set out of naming something and excluding something else.

Evan Harris: May I give the Minister the opportunity to respond, if she can, to the point that I raised on subsection (4) about the explanation for that exclusion? I feel that that would be best dealt with in this group of amendments, rather than in a stand part debate. If she is able to do that now, I would be grateful, but I understand if she is not, and she may be able to come back to it in an intervention.

Vera Baird: I will return to that point in the clause stand part debate if we have one. However, I do not know what your view will be by the time that we get to the end of the many amendments, Lady Winterton. I will either do that now or I will write to the hon. Gentleman, but I shall let him know.

Evan Harris: That is fine. I am grateful to the Minister for giving a full explanation of the Governments position. I accept that when there is a new provision, it is worth putting into statute. I accept that this is not a new interpretation of the law, but I believe that just because it is not new is not a reason for including it if there are other reasons. I know that that was not the main part of her case, and I am pleased that she recognised the argument for including the provision in the interests of transparency, especially since she felt strongly about the because of provision, where the case is somewhat less strong.

Vera Baird: A moment ago, the hon. Gentleman made a point about subsection (4). Association and perception discrimination have never been covered in marriage and civil partnership provisions before, because there was never any evidence of need, so we have just carried forward the existing protection to the Bill.

Evan Harris: That is useful in that narrow area, because I suspect that it will be raised by the Joint Committee on Human Rights, and it and others can reflect on that answer to see whether a case can be proposed for the exclusion. The logic is that other areas are included because there is evidence of a problem. I will not push that now, but it seems peculiar that, historically, there should have been such non-coverage, even if there was no evidence of harm, because it just sticks out. I shall have to reflect and seek advice.

Vera Baird: The hon. Gentleman will probably remember that I said this morning that the consultation showed almost an argument for discontinuing this protected characteristic completely, because there is so little evidence that it causes difficulty. As I understand it, there is absolutely no evidence that association and perception add to the almost non-existent difficulty that it causes. It is right at the bottom of everyones scale.

Evan Harris: I accept that. I am on the record as saying that legislation should prioritise dealing with mischief, which is why I raised the issue of sexual orientation discrimination in religious organisations. It is not part of my mission to seek out areas that are not covered for the sake of it. However, I will reflect on that.
To return to the Ministers reasoning, she was concerned that it is important to not inadvertently narrow the ambit of direct discrimination by a misplaced amendment that seeks to clarify. I understand that, although we have not seenI am not inviting her to do so nowany direct criticism of the amendment that I have provided or such an amendment that might do that. However, I recognise that that is sometimes a good reason for not providing greater explanation within statute.
We come to the Ministers core reason, which is the concern that including something might imply that other grounds are covered by direct discrimination. I was grateful to her for the information that she provided about the other sorts of things that are covered, such as detrimental treatment on the basis of a refusal to discriminate. The danger of including some parts of the definition might, by extension, imply that the others are not covered, and I need to reflect on what she has said about that. One could say that, if there is a good argument for including the measures in the Bill, she is still able to say and make clear that their mere inclusion does not in any way detract from existing protections covered by discrimination.
On balance, I am not persuaded that there is still a good reason to include such matters, but it is important that the organisations that I cited read the Ministers words carefully to see whether they are persuaded by her. On that basis, I think it wise for us all to go away and reflect on what she has said. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lynne Featherstone: I beg to move amendment 133, in clause 13, page 9, line 10, leave out subsection (3) and insert
(3) If the protected characteristic is disability, nothing in this section shall be taken to prohibit more favourable treatment of a disabled person on the grounds of a disabled persons disability..

An amendment to retain the asymmetric nature of disability discrimination.
This is a familiar discussion about disability and direct discrimination. It is asymmetric and therefore we perhaps have to treat those with disabilities more favourably to bring about an equal outcome, because disability is different from the other protected characteristics in that sense.
The amendment would allow duty holders to treat disabled people more favourably where that is necessary to meet their needs. The reason for the amendment is that the current wording in subsection (3) could lead to confusion, and it is not as explicit as the Disability Charities Consortium would wish. The key principle is that achieving equality for someone who is disabled requires, as I said, more favourable treatment. That principle is enshrined in the reasonable adjustment duty that is right at the heart of current disability discrimination law.
An employer might need to provide additional adaptations to ensure that someone with disabilities can do their job, and that might be something that would not be available to someone who is not disabled. In effect, the person with a disability would receive more favourable treatment than a colleague who is not disabled. The goal, as I said, is an equal outcome.
I believe that the Conservatives have tabled a similar amendment to the clauses on indirect discrimination. The problem with clause 13(3) as currently drafted is that, according to explanatory note 74, it is apparently intended to ensure that
in relation to disability it is not discrimination to treat a disabled person more favourably than a person who is not disabled.
The Disability Charities Consortium, which supports the amendment, is concerned that such drafting might not achieve that intention and might have unintended consequences, because the current drafting does not explicitly refer to more favourable treatment, which is such an integral part of disability discrimination law. It refers only to treating people
in a way which is permitted by or under this Act.
The DCC is concerned that that leads to a lack of clarity and that the hard-fought-for key principle of more favourable treatment should be made explicit in the Bill.
For the avoidance of doubt and to be absolutely clear that it is within the law to treat those with a disability more favourably, the amendment is unequivocal. It would replace the wording with a very simple statement that would ensure that the meaning of the Bill, which is to allow more favourable treatment for those with disabilities, could not be thwarted. It would ensure that there is no regression from the very important current protection from discrimination that disabled people have, and it would be clearer for those who need to be sure of what they are doing, whether they employers, service providers, statutory authorities and any others who may be affected. Under the legislation, they must be certain that they may treat people with disabilities more favourably. I am sure that everyone in this room will agree with the principle, but the argument is about the wording. How the Minister responds will be helpful to the courts.

Mark Harper: Again, I shall be very brief. I have some sympathy with the hon. Ladys concerns. We are looking for the Minister to do two things. First, we want her to be clear about the effect of the language in the Bill. The explanatory note is clear, but we want the Bill to be clear. Secondlythis goes to part of what the DCC is talking aboutwill she say a word or two about the guidance either from the Department or the EHRC? We want to be clear about what will be in the Act, but the guidance should be explicit for those who have to use, implement and understand the law, and the intention behind the law should be clear. That would be helpful.
A number of amendments have been intended to make the language in the Bill clear. There are two parts to that. First, we would like the Minister to comment on the legal effect of the Bill. Secondly, we hope that the text that the EHRC produces once the Bill is enacted will be more readable. That is critical, as it will be used by the man in the street and business organisations. The Minister could well reassure the Committee on those two points.

Vera Baird: The amendment would make the intent of clause 13(3) clearer. Our intention is to import into the Bill directly the asymmetric nature of the protection that Disability Discrimination Act 1995 gives to disabled people. That has always been our intention; it continues to be our intention, and there is no regression.
As has been pointed out, we say in the explanatory notes that
it is not discrimination to treat a disabled person more favourably than a person who is not disabled.
That could not be clearer or more unambiguous. However, clause 13(3) could be clearer and less ambiguous, and we do not think that we have achieved the same transparency in drafting the clause as we have attained in the explanatory notes.
We heard from the disability charities in the evidence-taking sessions. They were worried that the clause was not clear enough. There is absolutely no disagreement about what we are doing in Committee, so we would like to invite the hon. Lady to withdraw the amendment on the clear understanding that we are talking to the disability charities with every intention of attempting to clarify clause 13(3) in some better way. We have a target of doing so on Report if possible.

Lynne Featherstone: I thank the Minister for that very helpful response and clear commitment to what we all intend for this part of the Bill, and I am delighted that she will be working with the DCC to find a clear wording. On that basis, I am more than happy to beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Evan Harris: I beg to move amendment 221, in clause 13, page 9, line 20, at end insert
(5A) If the protected characteristic is religion or belief, for the purposes of this section, a claim for direct discrimination on that protected ground can not solely rely on A treating B less favourably on the basis of a manifestation of Bs religion or belief..

This is to make explicit in statute existing case law from the Employment Appeal Tribunal in Ladele vs Islington, that one can not claim direct discrimination when one is treated adversely solely on the basis of behaviour stemming from a religious belief.

Ann Winterton: With this it will be convenient to discuss the following: amendment 36, in clause 13, page 9, line 22, at end insert
(b) less favourable treatment includes placing tighter restrictions on expression related to religion or belief than on expression not related to religion or belief..

Makes clear that treating religious speech less favourably than non-religious speech is a form of direct discrimination.
New clause 3Freedom of religious speech
A public authority shall permit personal religious expression by those working for the authority to the greatest extent possible, consistent with requirements of law and the interests of workplace efficiency..

Imitates the wording of guidelines issued by President Bill Clinton in 1997 to protect religious free speech in the federal workplace.

Evan Harris: The amendment standing in my name and that of my hon. Friend the Member for Hornsey and Wood Green covers some quite complex areas of case law, and I will not be able to do it justice, partly because of time and partly because, when I finished reading the case that I found most useful, I had lost track of what was said at the beginning, so long and complex was the judgment. However, there are some juicy bits in it that make things clear.
The case also deals with the amendment and new clause tabled by the hon. Member for Glasgow, East. It is useful that we are having this debate, because there is a clear distinction in the position that I am taking, which seeks to probe the position in case law and the position taken by the hon. Gentleman in his amendment and new clause, which I think is wrong and inappropriate.
It is important to make clear what amendment 221 would do. If someone has a requirement in respect of work based on a manifestation of their religion, such as an unwillingness, inability or injunction not to work on a day of religious rest, or some requirements related to clothing, time for prayer or worship, I believe that they should have protection from discrimination when a criterion that prevents them accessing that right is not legitimate or proportionate to what it seeks to do. That is indirect discrimination.
I have supported a number of cases where religious individuals have been treated unfairly by another party. The Sikh bangle case is a good example. A young girl wanted to wear a bangle, but her school sought to prevent her from doing so. That was clearly indirect discrimination on the grounds of religion and belief. The court rightly reached the judgment that it was not justified under the terms of the test for indirect discrimination. I want to be absolutely clear about that.
I am seeking to debate the expectation that we will increasingly see some cases regarding discrimination on the grounds of a manifestation of religion brought to employment tribunals. I will refer to Ladele v. London borough of Islington, because it is a useful case, though not the only one. Suffering detriment on the basis of ones view that it is wrong that two people of the same sex should be joined together in a civil partnership is direct discrimination, where no justification is permitted. I hope that the Minister, who is wiser than me in such matters, can give helpful clarification that that is the case, even if she does not accept the amendment.
There are a load of similar cases before the tribunals at the moment. Many religious organisations see it as their right, as indeed it is, to test the issue in a series of different matters. It would be helpful if we could say, from the judgment of the Employment Appeal Tribunal in Ladele, which facts can be generalised to other caseswhich would we, as a Parliament, want to consider the general rule and intention?
Let me briefly rehearse the case. It involves a lady with clear Christian views, who at the time of the case was charged with providing civil partnership work as part of her job for Islington council. On the basis of her beliefs, which were genuinely and sincerely held, she did not want to conduct the ceremonies or do the registration. There is no doubt about the fact that it was considered essentially against Gods will and she did not want any part of it. However, she was pursuing a public function, and the effect of her position was that she wished the freedom in her role to discriminate against other people.
The Employment Appeal Tribunal overturned the judgment of first instance, and did so in quite stringent and critical terms. It ruled that there was no direct discrimination and that the indirect discrimination was clearly justified by the council on the basis of its seeking to prevent discrimination against gay people and to adhere to its own code of practice with regard to non-discrimination.
For illustration, I will refer to short segments of that judgment, as it goes to the heart of the amendment and is critical. In paragraph 70, Mr. Justice Elias, the president of the Employment Appeal Tribunal, cited the 2007 case of Azmi v. Kirklees metropolitan borough council, where a Muslim woman challenged a schools refusal to let her wear a hijab. That is a well known case in public policy, and it was debated in the House. Therefore, it is appropriate that we deal with it in the Bill.
The 2007 case said:
She was a language support teacher who provided such support for students with English as an additional language. The school adduced evidence before the Employment Tribunal to show that language support was more effective when the teachers face was visible. It refused her request for that reason. Her claim for direct discrimination failed. (The Tribunal considered that there was clearly prima facie indirect discrimination, although it was justified on the facts.). The reason the claimant wished to wear the hijab was her religious belief; the reason she was not allowed to do so was because it interfered with her effectiveness as a teacher.
The motive for the detriment was not her religious belief, but another motive. That is why my amendment makes clear that it will be difficult to adduce direct discrimination on the grounds of a manifestation of religious belief. That objective test will never be allowed.
The judge went on to cite the 2008 case of McClintock v. Department of Constitutional Affairs, where a magistrate alleged that he had been directly discriminated against for refusing to place children seeking adoption with same-sex couples. Again, the case was all over the newspapers and was raised during debate in this House. He said:
The Department insisted that he should apply the law in accordance with his judicial oath. The claim of direct discrimination failed before the Employment Tribunal and was not pursued before the EAT... The President commented that it was prudent not to pursue the issue; the evidence was that anyone who was not prepared to give effect to the judicial oath would have been similarly treated. His treatment was not because of his religious beliefs but because of his refusal to honour the oath. (In fact he was not able to establish that his objections were based on religious grounds in any event.)
That is a second key component: anyone who has that manifestation, whether it is based on religion or not, will be treated in the same way in cases such as this, whether it be by Islington council or the Department of Constitutional Affairs. It would be helpful if, during our deliberations, the Committee made it clear to people that they should not pursue that line of argument in employment tribunals.

John Mason: The hon. Gentleman used the word oath, which I think is interesting. Does he agree that we are looking for a pluralistic society? One example of that is that, in the courts and in this place, one can either take an oath or affirm. That gives a bit of flexibility. I do not agree with oaths as a religious person, although other religious people do, and people of no religion might also prefer to affirm. Is that not the kind of model that we should be looking forone that provides some come and go, some flexibility?

Evan Harris: I do not think that compliance with the oath is the relevant factor; it may just have been terms of employment. While I share the hon. Gentlemans view about oaths, I do not want to be drawn down that path as I do not think that is the key point in that case.
The president of the Employment Appeal Tribunal went on to say:
As to considerations of policy, direct discrimination of course cannot be justified.
That is a key point and it provides the reason for me raising it with relation to the clause. As one can never justify direct discrimination, it is important that these cases are not found to be valid claims of direct discrimination.
The president of the tribunal continued:
If the Tribunal were right to say that the fact that the claimants conduct was the result of her religious beliefs meant that she was being discriminated against on religious grounds, the employer could never justify any refusal to accede to an employees demands that he should be permitted to manifest his religious beliefs, however bizarre they may be. For example, an employee who refused to work on a particular day or days of the week for religious reasons, or who insists on praying at various times in the day, or who submits that carrying out various duties is incompatible with his or her religious doctrine, could in all cases be entitled to insist on doing these things and the employer would be obliged in all cases to accede to these demands.
In other words, there is not the objective test that is allowed in claims of indirect discrimination.
The president concludes on that point, making reference to Ms Mountfield, counsel for the borough:
As Ms Mountfield put it, the religious belief would be a solvent dissolving all inconsistent legal obligations owed to the employer. That plainly cannot be right. Indeed, given in particular the fact that beliefs may cover a vast range of subjective opinions, the consequences would be extraordinary.
I hope that the Committee understands my particular concerns about this.
I finish on the point about the European convention on human rights. Lord Hoffmann, in Regina v. Denbigh High School, another school uniform case, is cited in paragraph 122 by the president of the EAT:
Article 9 does not require that one should be allowed to manifest ones religion at any time and place of ones own choosing.
It has been argued that, regardless of what our discrimination law says, this should be claimable indirect discrimination to preserve the right to manifest ones religious belief in accordance with article 9, but as members of the Committee will know, the right to manifest religious belief under paragraph 2 of article 9 is qualified, unlike the right to hold the belief itself and to believe what one wants to believe.
The president, in paragraph 127 of his judgment, quotes from the judgment of Justice Munby in R (E) v. Governing Body of JFSJews Free Schooland others, an interesting judgment on other matters. The president says that
it is important to realise that reliance upon religious beliefs, however conscientious the belief and however ancient and respectable the religion, can never itself immunise the believer from the reach of the secular law, and invocation of religious beliefs does not necessarily provide a defence to what is otherwise a valid claim. Some cultural beliefs and practices are simply treated by the law as going beyond the pale.
That is not a criticism of religion or of the lady in the Ladele case; it is just a statement that we cannot operate proper employment practice if people can claim direct discrimination on the basis of not being allowed to do something that their religion tells them to do, having to do something that it tells them not to do or not being prohibited from doing something it tells them not to do, which is not what the employer wants them to do.
I accept that the phrasing of the amendment might not be appropriate, but it is designed to be not only an antidote to the point made in amendment 36 and new clause 3 by the hon. Member for Glasgow, East but an invitation to the Minister to give her view on whether the Employment Appeal Tribunalwhich, unlike some other bodies, sets precedentsis appropriate in this respect.
I have not had time, nor do I think I have the competence, to go into the two-stage test that the hon. Member for Glasgow, East quoted in detail, but it addresses the same sorts of issue. It may well be considered in another place if there is any doubt about the matter.
To save time, I will deal with amendment 36 and new clause 3, because I know that we are keen to make progress. I note that amendment 36 argues that
less favourable treatment includes placing tighter restrictions on expression related to religion or belief than on expression not related to religion or belief.
I do not think that that is helpful, because it is generally in cases of religion and belief that tensions between the strands arise. It is unusual for someone to manifest their race in a way that engages the rights of non-discrimination of people in other strands. It is one of the features of religion that its beliefs and manifestations can cause tensions in other strands, and it is our job, and the job of Parliament more broadly in dealing with the Bill, to get that balance right.
I hope that the hon. Gentleman accepts that such matters arise in religion, and religious people must be able to make a claim of indirect discrimination, but that direct discrimination is not the place for it.
New clause 3 is of even greater concern. It says:
A public authority shall permit personal religious expression by those working for the authority to the greatest extent possible, consistent with requirements of law and the interests of workplace efficiency.
Obviously, the Minister will give her own response, but I think that the argument will be that
consistent with requirements of law
makes the new clause essentially unnecessary, as the law is what we are debating. If the provision were to mean anything, it would, almost by definition, fall outside the requirements of the law.
The new clause needs to be considered, but why should personal religious expression trump anything else, if that is the intention of the new clause? The worry is what the new clause would mean and that the hon. Member for Glasgow, East is essentially saying that there could be a general right of conscientious objection for doctors not to prescribe contraceptive pills to women who are not married, not to treat patients who have alcohol problems on the basis of a religious objection to alcohol and a series of other things.
I strongly believe that that should not be permitted in the delivery of a public service. It should not be allowed in the medical profession beyond the existing statutory exemption that applies to abortion services, which I support. Otherwise, we will end up with a broken-up health care system, where individuals have to shop around for someone willing to give treatment that complies with their religious belief.
The object of new clause 3 is something we should resist absolutely, for the reasons that I have given. What effect it would have in practice is a moot point, given the caveat
consistent with requirements of law.
I look forward to hearing the views of other members of the Committee.

John Mason: Thank you for the opportunity to speak under your chairmanship, Lady Winterton. As I did this morning, I want to make it clear that when I speak on religious matters, I am generally speaking on my own behalf, not that of my party.
I tabled the amendments so that the Committee would have an opportunity to discuss the place of religion in our society. To pick up on the final point made by the hon. Member for Oxford, West and Abingdon, it is not my desire for religion to trump other protected characteristics, but it is my desire that religion should not be trumped by them.
Amendment 36 would make it clear that it is a form of direct discrimination to treat religious speech less favourably than non-religious speech. They should be treated equally. It would reinforce freedom of speech for religious people by requiring that any restrictions imposed on free speech are not biased against religion. I hope that most hon. Members will think that that sounds fair. The question is whether it is necessary.
I would like to refer to two cases that have not been mentioned so far. The first is that of a woman called Caroline Petrie. She follows the Christian faith and works in Somerset as a nurse. In December last year she was suspended from work because she offered to pray for a patient. Although the patient was not upset by the offer, she mentioned it to another nurse, who reported the matter. Mrs. Petrie was subsequently accused of breaking nursing guidelines by failing to
demonstrate a personal and professional commitment to equality and diversity.
There was a degree of publicity about the case, and eventually the primary care trust invited the nurse back to work. Is it really harmful for a nurse with faith, who cares about her patients, to offer to pray for them? Surely that is not so unacceptable.

Evan Harris: I do not want to be drawn too specifically into that case, but I accept that it is germane to the amendment. From the point of view of a professional body, it is inappropriate for a health care professional to seek to impose their personal views on a patient. That is stated clearly in the general medical code of practice for doctors, Duties of a doctor.
There is nothing to stop a nurse praying for a patient. It does not have to involve the patients knowledge, and as I understand it, religious people would argue that it does not weaken the effectiveness of a prayer if the person prayed for does not know about it. Neither is it inappropriate for someone who is religious to accede to a request made to them by a patient if they so choose. However, in strict, professional terms, it is not appropriate for them to initiate that conversation, as that is not the job of a health care practitioner but the job of a priest. I do not understand why the nurse in this case, who as I understand it had engaged in that practice before and had been warned about it, could not desist from offering unsolicited prayers to patients. There is freedom of belief and freedom of prayer, but there is not the freedom to impose ones views on a patient.

John Mason: I suppose that I have a problem with the phrase, seek to impose. I do not think that Mrs. Petrie was seeking to impose anything. She was offering another skill that she had. A similar example would be her offering some extra bit of care to the patientif she was an expert in massage, for example. However, I would have thought that offering is slightly different from seeking to impose.
The idea that prayer is only the job of a priest takes us down an interesting route as far as religion is concerned. With regard to my background, we did not believe in priests as such, in that we thought that all believers were of equal value and could do all of those things. I would not accept something contrary to that.

Diane Abbott: I take the opportunity of my Whips being absent from the Committee to intervene. The hon. Gentleman said that offering to pray was not the same as an imposition, but surely a person who is ill in bed and feeling vulnerable and unwell is not in a position to debate whether they want to be prayed over. It is one thing for a patient to ask for a nurse to pray over them. Personally, I would not want to be prayed over, willy-nilly, if I was lying ill and frail in bed.

John Mason: I take the hon. Ladys point. A large part of nursing is about sensitivity and getting to know the patient, among other things. I agree that there could be a time when such behaviour was clearly insensitive, but I suggest that at other times it could be perfectly sensitive and helpful.
I have just realised that I did not answer a question asked by the hon. Member for Oxford, West and Abingdon. Yes, I do believe that prayer makes a difference, whether the person is or is not there to be prayed for.
Mrs. Petrie was not alone in finding that expressing her religion could be hazardous for her livelihood. In March this year, David Booker, a Christian charity worker in Southampton, was suspended under diversity rules after a conversation in which he answered a colleagues questions about his religious beliefs on sexual ethics. Mr. Booker had worked as a hostel support worker for four years. His bosses told him that expressing his religious beliefs on same-sex unions broke the charitys culture and diversity code of conduct.
As I have said, the hon. Gentleman is not a great fan of religion, but he was generous enough to say on Second Reading that he defended Mr. Bookers rights to express, in moderate terms, his religious beliefs about sexual ethics.

Evan Harris: I should explain that, having researched Mr. Bookers case as far as I can, on the facts as I know them, and no Committee member knows the full facts of either of those cases, which are likely to be fact-specific, the suggestion is that his conduct broke the code of practiceI do not think that the case has been decided yetdesigned to prevent people from being harassed. That is really a question of whether the definition of harassment in work, as reflected in an employees code of conductif it was indeed reflected in such a codeis too broad. Before people dive for suspensions, there ought to be a little more scope to discuss with a colleague, in moderate terms, their religious views on a lonely nightshift.
I hope that the hon. Gentleman will concede that that is entirely different from a health care professional dealing with a vulnerable patient who has not asked any questions at all, and is suddenly asked whether they are gay, for example. What does he think about a Christian saying to someone who is gay, Ill pray for your soul, knowing that position? That is a different matter. I hope that he recognises that.

John Mason: I accept that the two cases are different. However, in both cases, whether it is an employee or a patientor anybody elseone wants there to be sensitivity. One of the ideas of Christianity is that one is loving and sensitive, and so on. I have been in situations where one just would not talk about religion or sex, or anything, with some fellow employees, because it would be a disaster, whereas it would be possible to chat with other people in the pub or during a tea break, for example.
I understand that the Pink News website spoke out in Mr. Bookers defence. It ran a piece that concluded:
Whatever the outcome of this case, it seems increasingly apparent that people have more of a right to be gay than to be religious.
We can argue about the details of the lawwhere it has been and where it isbut there is a feeling in society that religion is the poor relation in some cases.
My amendment does not seek to stop employers placing limits on speech. It asks the employers to be even-handed. No employer wants inflammatory speech in the workplace. I am perfectly comfortable with that as long as employers are consistent. If they want to ban all divisive conversation in the workplace, they should apply that ban without fear or favour, whether the subject is music, politics or football rivalries.
A ban on divisive or offensive speech would not fall foul of the amendment, as long as it was applied consistently to religious and non-religious speech alike. The amendment is not limited to employment, but would apply to a definition of direct discrimination on religion or belief grounds for the whole Bill. It would, therefore, apply to the actions of all those who were bound by the Bill, such as local authorities and the police.
As an aside, I hope that the amendment sends a signal to those local authorities that think that religious equality means banning Christmas and such like. They would have to ensure that they were not applying one rule for expressions of secularism and another for expressions of religion. I accept that it is already arguable that imposing unfair restrictions on religious speech constitutes direct religious discrimination, but with all such cases, if we want to tackle real, live injustices, it seems that we have to make the obvious more obvious. I could have cited other cases.
I hope that the Minister accepts that there is evidence of a problem that needs addressing. As I said, there is a feeling that religion is the poor relation in equality lawthe equality strand that dares not speak its name. We should not have to state something so obvious in the definition of indirect discrimination in clause 13, but with cases of religious people coming off second best when acting fairly reasonably, it seems that we have to do something to correct the imbalance that has come about in the interpretation and application of equality law.
New clause 3 underlines what has already been said. It is based on the guidelines issued by Bill Clinton in 1997 on freedom of religious expression in the federal work placethat is something practical, which has been used elsewhere. As I said, I do not want religion to trump other protected characteristics, I just want us to have mutual respect.
Finally, amendment 221 would amend the definition of direct discrimination in clause 13. An explanatory note cites the case of Lillian Ladele, who was a Christian marriage registrar. As I understand it, in July last year, at first instance, the employment tribunal found in Miss Ladeles favour. Its ruling listed various acts of direct discrimination committed against Miss Ladele by Islington council on the grounds of her religious belief: failing to consider her for promotion; deciding to discipline her and threatening her with dismissal; concluding that she had committed gross misconduct; failing to redress allegations that she was homophobic, and labelling and treating her as homophobic; disregarding her concerns about her treatment; and failing to apply its anti-discrimination policies to gay colleagues who were mistreating her. The employment tribunal also found that the council
disregarded and displayed no respect for Ms Ladeles genuinely held religious belief
and that it created an
intimidating, hostile, degrading, humiliating or offensive environment for her on grounds of her religion or belief.
However, in December last year, the Employment Appeal Tribunal overturned that ruling. It accepted that Islington had acted in an improper, unreasonable and extraordinary manner:
There were clearly some unsatisfactory features about the way the council handled this matter. The claimants beliefs were strong and genuine and not all of management treated them with the sensitivity which they might have done.
However, the tribunal ruled that it did not amount to religious discrimination. It seems extraordinary for the Employment Appeal Tribunal to say that the young lady was badly treated in connection with her sincere religious beliefs, but that she should have no redress whatsoever.

Mark Harper: The hon. Gentleman highlights an important issue, which the Minister could comment on when she responds, based on what the Employment Appeal Tribunal said. Notwithstanding its ruling, it made the point that some of the council management had not treated Ms Ladele properly. Where there are conflicting rights, one solution might be for the Equalities and Human Rights Commission guidance to advise employers and other organisations on how to behave and on possible steps to take to deal with employees sensitively. Rather than turning into divisive court cases, matters could be resolved internally within an organisation, with some give and take on the part of the organisation and the individual. That might be a proper subject for guidance. Will the Minister reflect and comment on that in her response?

John Mason: I thank the hon. Gentleman for his intervention; he makes a very good point that we have touched on before: should there be some kind of purpose clause or something else dealing with conflicting rights? It is clear to the Committee that such situations have arisen in the past and could do so again.
Miss Ladele is taking her case to the Court of the Appeal, and some lawyers believe that the Employment Appeal Tribunal ruling is so extreme in its dismissal of manifestations of religious belief that she is likely to winwe shall see. Enshrining the EAT ruling in legislation as suggested by amendment 221 is therefore a bit premature. I was slightly taken aback by the explanatory note to the amendment, which states that its goal is to ensure that
one cannot claim direct discrimination when one is treated adversely solely on the basis of behaviour stemming from a religious belief.
Should people treated adversely owing to religious behaviour never be able to claim direct religious discrimination, no matter how gross and unjust? Surely that is not what we are aiming at. And does that not contradict the approach of the hon. Member for Oxford, West and Abingdon in amendment 217, which states that all behaviour stemming from sexual orientation should be protected? So behaviour stemming from religion should not be protected, but that stemming from sexual orientation should. I do not understand how that is fair.
Dr. Harrisrose

Ann Winterton: Order. I do not think that we can have another debate on amendment 217. The best way forward is for Mr. Mason to proceed.

John Mason: Thank you, Lady Winterton. That is fair enough.
The position underlined by the EAT ruling on Ladele, under which religious rights come last, is not acceptable. Whichever side of the argument we are on, we should not enshrine that position in legislation as suggested in amendment 221. We should be rebalancing these matters; but I shall return to that in later amendments.

Vera Baird: There is a theme to these amendments and the new clause around safeguarding the rights of religious-minded people. I must deal with them individually, however, because they all come from different angles. If the hon. Member for Oxford, West and Abingdon will bear with me, I shall deal first with the amendment and new clause tabled by the hon. Member for Glasgow, East.
Given that the hon. Gentlemans amendment is to clause 13, his intention, as I think that he stated, is to make placing tighter restrictions on religious expression than on non-religious expression a form of direct discrimination. However, that is not possible, because direct discrimination, as defined in clause 13, means treating somebody less favourably owing to a protected characteristic, such as religion or belief. It is not about religious expression, but about having the characteristic of religion or belief. I shall try to dovetail my argument into the case law that he quoted. Let us imagine that an employer has a rule against employees expressing or promoting their religion or belief in the course of their work. Someone who broke that rule and was dismissed might claim that was less favourable treatment because of their religion or belief, but if they were dismissed for inappropriate promotion of their belief, the dismissal would not be unlawful discrimination within clause 13.
I do not know enough about the Booker case mentioned by the hon. Gentleman, nor about the other case, but it sounded as though those people were disciplined for breaking their employers internal code of conduct. That is different from being dismissed because of ones religion or belief.
The case of Chondol v. Liverpool city council, an employment tribunal about this issue, was upheld by the EAT, which said that the
distinction between, on the one hand, the Appellants religious belief as such and, on the other, the inappropriate promotion of that belief is entirely valid in principle (though of course in any case in which such a distinction is relied on it will be necessary to be clear that it reflects the employers true reason).
So, that is different from dismissing someone because they hold a religious belief. Clause 13 is about providing protection to someone who is treated less favourably because of their religion or belief, so the amendment does not fit into it at all, and I ask the hon. Gentleman to withdraw it.
In a sense, the hon. Gentleman could afford to withdraw the amendment anyway, because most of what he seeks to encapsulate is in his new clause 3, which is intended to guarantee freedom of personal religious expression for those who work for a public authority, where those expressions of belief remain
consistent with requirements of law
and do not have an adverse impact on
the interests of workplace efficiency.
We do not think that the new clause would make any difference to the protection that is provided to people with a protected characteristic of religion or belief.
I have said this a number of times today, but I had better say it every time the hon. Gentleman alleges these things: we do not think that religious rights come last or that religion is persecuted. We do not think that religion is the poor relation or that religious expression is treated in an inappropriate way. We do not accept for a minute what seems to be his presupposition that religion is at the bottom of the pile overall.

John Mason: I kind of accept that about the Governments intentions, but does the Minister accept that some employers who perhaps do not have such a detailed knowledge of the law tend to treat religion as the poor relation?

Vera Baird: I am not able to do an instant survey of employers to find out whether they put religion first, second, third or 57th. Anyway, what the hon. Gentleman is saying is not that, but that it is perfectly acceptable to the Government that religion should come bottom of the heap, and that that is what the Bill does, but I repudiate that lock, stock and however many smoking barrels there were in the name of the filmtwo I think.
I am sure the amendments are well meant, but they would not make any difference because the Bill replicates the position under current legislation and maintains a persons right to hold and to express religious or non-religious beliefs. The measures are totally in line with article 9 of the European convention, which says that everyone has the right to freedom of thought, conscience and religion. There is no provision to prevent people from legitimately expressing their religious beliefs, whether in the context of employment by a public authority or anyone else, and we take the need to preserve the rights of religious liberty and free speech in every sector of society very seriously. Any legitimate freedom of expression will remain lawful as is required of us under article 10 of the European convention.
We are aware, as I think the hon. Gentleman is because of the nature of his new clause 3, that it is important to balance the right of freedom of religious speech with other protected characteristics. The measures are not about creating a hierarchy, but seek to strike a balance where there are potentially conflicting rights, such as between religion and belief, and sexual orientation. The provisions do contain a test of reasonableness to apply where there are issues that may be construed by some as harassment within the workplace: for instance, an atheist church cleaner offended by crucifixes on display because that is not the cleaners beliefs. An element of reasonableness has to be injected there, and the Bill does that, so as to balance the rights of religious expression, and the other rights.
The amendment itself acknowledges that some legitimate restriction may be imposed, perhaps on someones right to freedom of religious expression within the workplace. The new clause includes the proviso that the liberty has to be consistent with the requirements of law in the interests of workplace efficiency. We think that balance is already in the Bill and the right to religious expression is adequately protected. Amendment 36 to clause 13 should go, because it does not fit in that place at all. New clause 3 does not add anything and would not alleviate the concerns expressed, which I am sure we will debate again when we get to the schedules. I ask the hon. Gentleman not to press both the amendment and new clause.
Amendment 221, tabled by the hon. Member for Oxford, West and Abingdon, would have the effect of clarifying the fact that it is not unlawful to discriminate against people because of a manifestation of their religion or belief. In other words, it is not unlawful for A to discriminate against B because of a manifestation of Bs religion or belief.
Religion or belief has a wide meaning. That does not mean that each and every need of a person who has a religious belief must be catered for. The definition of religion or belief does not include manifestations of those things. That distinction is present in article 9 of the ECHR, too. So, somebody might wear particular clothes, pray at particular times in accordance with the tenets of their religion, express views, and say or do other things reflecting beliefs. In such a case, if a person suffered a disadvantage because they had done or said something related to that, it would not constitute direct discrimination on the grounds of religion or belief under the current legislation. It is a mirroring of the hon. Member for Glasgow, Easts positionperhaps it is the same. It would be direct discrimination only if a person with different beliefs or no belief were treated more favourably in similar circumstances. That is why the EAT in the Ladele caseand courts and tribunals in other caseswas entitled to reach the conclusions it did. I think least said soonest mended about that because it is going to appeal, is it not? We do not want to comment on a live case. However, the Bill does not change the existing law, so I hope I have satisfied the hon. Gentleman that the amendment is not necessary.

Evan Harris: I am grateful for the Ministers response; I did not expect her to accept the amendment or even to recognise it as necessary. However, what she said was supportive, as far as it wentgiven her view that even though we are discussing legislation, she does not want to comment directly on a case that is going to further appealand I am relieved to hear that.
I want briefly to respond to a couple of points made by the hon. Member for Glasgow, East, because it is important to clarify that I, for one, do not believe that religion isor should bea poor relation. Nor is it a form of discrimination that dare not speak its name. Those sorts of cases are all over the Daily Mail. I am not seeking to damn him, by association, or the Daily Mail. Indeed, I am pleased to see that religious claimants are well resourced to bring cases through the Christian Legal Centrethat is their right. I just want us to be clear in advance so that employers are not dragged into the courts or scared of fighting a case.
I am clear that, if there is outrageous behaviourI do not think that Islington council was found guilty of thisagainst someone on the basis of their religion, that is harassment in employment and is rightly covered. I have not tabled amendments to weaken the harassment provisions, although I have some sympathy with the proposal of the hon. Member for Glasgow, East to change or to and in clause 24. I do not think that the fact that one cannot bring a claim of direct discrimination on the basis of a manifestation of religion means that employers are at liberty to treat people badly on the basis of their religious views. In fact, quite the oppositeand rightly so, in my opinion.
On the issue of a hierarchy, it is generally not the case that gay employers or indeed colleagues give religious people a hard time. There is not that sort of problem with religion being put upon by the other strands. It is just a question of recognising that sometimes there is tension. The way the Minister put it is right, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Evan Harris: I beg to move amendment 219, in clause 13, page 9, leave out lines 21 and 22 and insert
(6) It does not matter if the protected characteristic that B has is also shared by A..

This is to probe why the provision in Clause 13(6) which applies to religion and belief does not in fact apply to other strands.

Ann Winterton: With this it will be convenient to discuss amendment 218, in clause 13, page 9, line 22, at end insert
(6A) If the protected characteristic is sexual orientation it does not matter whether the sexual orientation is also As..

This is to probe why the provision in Clause 13(6) which applies to religion and belief does not in fact apply to other strands.

Evan Harris: The two amendments are probing, self-explanatory and explained by the Members explanatory statements. I could go into the history of where the provision first appeared and then did not appear in a previous version of the regulations, but I will not seek to do so. I think that the Minister is in a position to respond to the points on the basis of the amendment as written and the Members explanatory statements, and I look forward to hearing her response.

Vera Baird: It is not a defence, if a gay person, for instance, is discriminated against, to say, It is not discrimination, because I am being myself. There is no such defence at all. I hope that that is sufficient for the hon. Gentlemans purposes.

Evan Harris: I would be grateful if the Minister could directly answer the question as to why the provision appears in respect of religion but is not expressed in respect of sexual orientation or indeed the other strands. I think that she is saying that the same applies to all the others, even though it is not written. If she is saying that, that is useful. I would be grateful if she could confirm that and explain whether there is a reason why that is not included. As I have admitted, I am not going to press the amendment, but it was proposed in the spirit of wanting to hear whether there is a reason why religion and belief is picked out in the way it is.

Vera Baird: The provision is not new. Clause 13(6) is there because there are religions with different sections and different kinds of adherence to the religion. Judaism and Islam, for instance, encompass a range of views from orthodox to liberal and moderate. The extremes in differences in outlook and lifestyle are considerable within those religions, with the attendant potential for discrimination by some of the followers of another sector. That is why there is a separate provision for religion.
I can reassure the hon. Gentleman that the interest groups that he talks to regularly, apart from that sector, are not aware of any potential for difficulty in other strands. Even if they were, the Bill protects that situation. That is why the religion provision is different from the others. As a woman, it is no defence say, There cannot be discrimination against another woman. In fact, if I have discriminated against her, it is discriminationend of.

Evan Harris: The Minister is being helpful and I recognise the historic basis. She will recall that, in the draft employment discrimination regulations, nothing was said, and then in another proposed measure there was a provision that was the opposite to clause 13(5). I think that it was changed to ensure that clause 13(5) exists as it is. I merely note in passing that earlier she quite rightly warned us that, if something is explicit on one ground, there is the dangeralbeit without the helpful explanation she gave of her viewthat it would be deemed not to apply to the other grounds, simply on the basis of its inclusion here and their absence from the measure. I do not think I am going to get any further with my argument but I may well ask her at a later stage or in another place to reflect on whether, just for safety, it might be wise to accept a version of one of these amendments. I do not think now is the time, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 13 ordered to stand part of the Bill.

Clause 14

Discrimination arising from disability

Evan Harris: I beg to move amendment 191, in clause 14, page 10, leave out lines 3 to 6 and insert
(a) A treats B in a particular way for a reason arising from Bs disability,
(b) the treatment amounts to a detriment, and
(c) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
(1A) For the purposes of this section, A treats B in a particular way for a reason arising from Bs disability if
(a) A treats B in that way for a reason arising from Bs disability (but not by reason of Bs disability itself); or
(b) A treats B in that way for a reason arising from a manifestation of or behaviour connected with Bs disability (but not by reason of Bs disability itself).
(1B) For the purposes of subsection (1), A treats B in a particular way for a reason arising from Bs disability even if A treats or would treat another person without a disability in the same way as B where that other persons circumstances are otherwise the same as those of A.
(1C) For the purposes of this section, the circumstances in which A shall be taken to be reasonably expected to know about Bs disability include where A has failed to ask B if he has a disability..

An amendment to restore the level of protection afforded to disabled people to that before the House of Lords judgement in LB Lewisham v. Malcolm. It also prevents ignorance being a defence of detrimental treatment.

Ann Winterton: With this it will be convenient to discuss the following: amendment 8, in clause 14, page 10, line 5, leave out paragraph (c).
Clause stand part.

Evan Harris: This covers the Malcolm case and there is much that could be said but, in view of the time, I am going to restrict my remarks to a description of what my amendment does, rather than consider the analyses and critiques that have been made of the clause. I want it recognised that there is concern about the wording of the clause, particularly in relation to clause 14(1)(b) and its meaning. Even if I am brief, I hope that the Minister is as full as she can be in her response, in order that people are satisfied that the Government understand the concerns raised around this matter. It is clear that most organisations that support the amendment, or the thinking behind it, recognise that it is the Governments intention to reverse that part of the Malcolm case that had the effect in our law of depriving some disabled people of protection that they thought they had. It is not a question of motive; it is one of drafting.
After some consideration and discussion with interested bodies and outside expertsbecause I am not an expert in the history of discrimination lawwe have put together one long amendment and withdrawn others that were smaller in order to assist the Committee in looking at the provision. If we compare the amendment to the clause as written, the first thing the amendment does is change 14(1)(b). It gets rid of this difficult-to-interpret provision:
A person (A) discriminates against a disabled person (B) if....(b) because of Bs disability, the treatment amounts to a detriment
and changes it to
(b) the treatment amounts to a detriment,
and then goes on to qualify that stem subsection. I will be asking the Minister to explain in her response what is meant by clause 14(1)(b). I am not going into the various interpretations that have been put on that. Suffice it to say that my inbox is full of people confused about the intention behind it.
The part of the amendment that introduces new subsection (1A) is intended to capture what I think the Minister is seeking to do in subsection (1)(b) but in clearer terms by saying that the detriment may arise from A treating B
in a particular way for a reason arising from Bs disability,
or a
reason arising from a manifestation of or behaviour connected with Bs disability (but not by reason of Bs disability itself).
To save time I will not read out the view of the Equality and Human Rights Commission but it thinks that there is merit in the construction I have made. I do not claim ownership; I have had considerable help and advice on it.
Proposed new subsection (1B) specifies that A should be considered as treating B
in a particular way for a reason arising from Bs disability even if A treats or would treat another person without a disability in the same way as B where that other persons circumstances are otherwise the same as those of A.
The Minister will understand that that includes within it an important concept for disability discrimination, which goes to the heart of the issues raised by the Malcolm case.
Proposed new subsection (1C) specifies:
For the purposes of this section, the circumstances in which A shall be taken to be reasonably expected to know about Bs disability include where A has failed to ask B if he has a disability.
I am conscious of the fact that new subsection (1C) is a little premature in its drafting, because it comes before subsection (2). It probably belongs after and I recognise that flaw in the drafting.
Nevertheless, it is important to recognise that the combination of measures in the amendment delivers what the Government are seeking to do. I think that there is no difference between most of the disability organisations and the Government, the Liberal Democrats and, I believe, the other Opposition parties with regard to what is being aimed at here.
I do not think that one should go as far as amendment 8. There has to be some ability for people

Mark Harper: I took the approach of tabling a probing amendment simply to prompt discussion rather than because I wanted to remove paragraph (c), so the hon. Gentleman need not have a long complicated reason as to why amendment 8 is not very good.

Evan Harris: It is even better to have a short and uncomplicated discussion, therefore, on amendment 8.
The Committee will understand that, for reasons of brevity, I have not gone into all the background, because I know that the Minister will seek to do that. I very much look forward to hearing the Ministers response to the amendment.

Mark Harper: I will also seek to be brief. The hon. Gentleman raises a good point. We agree with the concerns that he has expressed. We have just chosen a different approach, on the basis that we too are not experts in this area. We have tabled an amendment to remove paragraph (c). It is a probing amendment, to prompt this discussion. It also reflects the fact that, at the evidence session, the Minister made it clear that the Government intend to put the law back to how it was before the Malcolm judgment, to have that appropriate balance, and they do not want the law to regress. Given those assurances, therefore, our amendment was intended to probe the extent to which the clause achieves the Governments aim.
I wanted to touch on a couple of issues. First, I want to ask the Minister whether the provisions in the clause adequately return the concept of disability discrimination to the concept that existed prior to the Malcolm judgment, or is the clause similar but different, striking that appropriate balance that is talked about in explanatory note 77? Secondly, I want to get the Governments view about whether the safeguards in the clause are sufficient to prevent a Malcolm-type judgment occurring, which would put us back in the position that we are in now, requiring a legislative solution all over again.
The hon. Gentleman touched on one area that has raised some concern, which is the knowledge requirement referred to in subsection (2). A concern that has been raised by, among others, the EHRC relates to whether that requirement correctly puts the onus on employers and others to take steps to satisfy themselves about the nature of somebodys disability. The amendment that the hon. Gentleman tabled, which the EHRC supported, was intended to ensure that employers had to take a proactive approach and could not just express disinterest in these matters or even remain deliberately ignorant of them, in order to provide themselves with a defence.
Clearly, there is a balance to be struck. Employers and other organisations cannot be expected to know every facet of someones life; it would not be reasonable for them to take steps to do so. Indeed, taking steps to do so might be thought to be discriminatory. Does the Minister think that that balance has been correctly struck, given that some disability organisationsthe Disability Charities Consortium for examplebelieve that the provisions are a regression? They specifically say that the provisions are a regression from the rights that disabled people currently have under the Disability Discrimination Act 1995, under which, they say, there are no knowledge requirements. It is important for the Minister to cover that point in her response.
Does the Minister feel that the provisions in the Bill place too great a faith in the ability of those who hold the duty not to discriminate to understand that certain behaviour is related to a disability? In other words, is the level of understanding that someone is required to have about a disability and consequent behaviour too high for someone to reasonably have? If the Minister covered those points, I would be satisfied, which is the purpose of my amendment, as would the hon. Member for Oxford, West and Abingdon, given what he has said.

Vera Baird: I am charmed by the admission from the hon. Member for Oxford, West and Abingdon that he tabled the amendment just for the sake of having a discussion. I therefore do not know whether he wants me to deal with amendment 8. It is fine if he is content not to press the amendment to a Division; we have had a discussion, and he has had his share of it.
Amendment 191 would make significant changes to clause 14. The clause is intended to address the consequences of Lewisham v. Malcolm, which frankly made it difficult for a disabled person to show that they had been subjected to disability-related less favourable treatment. We introduced clause 14 after consultation. We intended to address the impact of the case by introducing indirect discrimination for disability, but key stakeholders convinced us that adequate protection for disabled people would be achieved only if we had a provision that emulated disability-related discrimination. We accept that, and we are convinced that going with provisions outlawing indirect discrimination regarding disabilitiesour intended direction plus what we took from stakeholderswill achieve the outcome that we want for disabled people.
Like the provision in the 1995 Act, clause 14 is intended to provide that the disabled person demonstrates that they have been subjected to detrimental treatment because of something connected with their disability and, secondly, that the duty holder should be able to justify that treatment. However, we have revised the wording from the 1995 Act because we cannot simply carry it forward as the finding in the courts said that we did not achieve the protection that we intended. We therefore dropped the requirement for a comparator.
Amendment 191 proposes additional and substantial revisions to the drafting and moves away from the because of formulation, which is also in clause 13 on direct discrimination. I guess that it therefore seeks a greater distinction between clauses 13 and 14. It would also link the detrimental treatment to
a reason arising from Bs disability.
I do not know whether my next couple of sentences will be entirely satisfactory for either of the two hon. Gentlemen who have spoken in this debate, but I am optimistic. We recognise that there could well be a case for amending clause 14 to make it more distinct from clause 13 and, againthis is very contingent on the evidence that we have heardto provide greater clarity that the provision is intended to cover discrimination that arises from matters connected with a disabled persons disability. We all agree on the aim and intended outcome, but the Government acknowledge that we need to look at whether we could express them more clearly in legislation.
If that is sufficient for the hon. Member for Oxford, West and Abingdon, I ask him to withdraw the amendment so that we can consider whether that provision, or something else, is the best way to achieve our intention. If he is not content, I could go on to say why we cannot accept some parts of his amendment and why it will not fill the gap.

Mark Harper: In the same way as when we were speaking to amendment 133 to clause 13, can the Minister say that she intends to bring forward either a rewritten clause or an amendment on Report?

Vera Baird: Yes, we intend to do so on Report.

Evan Harris: I thank the Minister for what she has said so far. I would like her to briefly set out some of the issues relating to amendment 191I promise not to intervene for clarification, which might reassure her. I will then consider what she has said, because I think that she makes a very reasonable case. However, given the amount of effort that has been invested in amendment 191, it would be useful to hear her response to it.

Vera Baird: Proposed new subsection (1B) relates to a situation in which a person subjects a disabled person to discrimination arising from disability, even if that person has subjected a non-disabled person to the same detriment, where the non-disabled persons circumstances are otherwise the same as those of the disabled person. The provision in clause 14, however, does not require a comparator for establishing the detriment because of somebodys disability. Instead, it applies where the treatment to which the disabled person is subjected is detrimental because of the disability. It is immaterial that somebody else, disabled or not, has been subjected to the same treatment. Proposed new subsection (1B) is therefore unnecessary and, indeed, on one view, it goes back to older law.
Proposed new subsection (1C), which would amend the knowledge requirement of clause 14, would prevent someone from using lack of knowledge as a defence against discrimination arising from disability unless they asked the person they intended to subject to a detriment whether they had a disability. Clause 14 provides for someone to use lack of knowledge to demonstrate that they did not commit discrimination arising from disability, but other provisions in the Bill put the burden of proof on that person to show that they have not discriminated against a disabled person. Taken together, we think that those provisions provide appropriate protection for a disabled person.
As a matter of principle, the Bill does not place an onus on a disabled person to make a declaration about their impairment, and neither does it place an onus on those with duties under the Bill to make inquiries of a disabled person, because we think that it is for the disabled person to decide whether or not to declare the impairment. Similarly, we think it inappropriate to require a person to make inquiries to determine whether somebody is disabled, because it would place undue burdens on those with duties under the Bill. For example, a pub landlord would be put in an invidious position if they had to ask everybody they intended to throw out of their premises for drunkenness whether they had a disability or not. That example writes the issue quite large, but it makes the point.
We think that the current provisions achieve an appropriate balance between the rights of the disabled and those of people with duties under the Bill. Proposed new subsection (1C) would be superfluous and probably swings too far in a different direction.
Those are our main reservations about the amendment. As I have made clear, we are open to the disabled lobbys arguments that we should alter clause 14 to make it clearer and different from clause 13 in order to re-register the difference between disability as a protected strand and all the others. If the hon. Gentleman withdraws the amendment, we will do our best to return with something by Report. We will obviously discuss that with the Committee, but we will take our lead from the disability lobby.

Evan Harris: The Ministers final remarks say all that needs to be said. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 14 ordered to stand part of the Bill.

Clause 15 ordered to stand part of the Bill.

Clause 16

Pregnancy and maternity discrimination: non-work cases

Vera Baird: I beg to move amendment 91, in clause 16, page 11, line 20, leave out less favourably and insert unfavourably.

This amendment and amendments 92 to 98 would restate the test for pregnancy and maternity discrimination so as to remove the uncertainty of the wording of the existing test and avoid any risk of the current wording in the Bill being interpreted as reducing protection.

Ann Winterton: With this it will be convenient to discuss Government amendments 92 to 98.

Vera Baird: The amendments will restate the test for pregnancy and maternity discrimination in clauses 16 and 17. The current test for pregnancy and maternity discrimination in the Sex Discrimination Act 1975 has led to the current drafting of the Bill, which states that a woman must not be treated less favourably for reasons of pregnancy or maternity. It is unclear, on one view, with whom or with what treatment is to be compared, so we have tried to make the position clearer. It is settled law that a woman claiming discrimination because of pregnancy or maternity is not required to compare her treatment with that of an actual or hypothetical male or female comparator, and the Bill does not change that. Clause 16(7) will clarify the current position by introducing an objective standard by reference to which it can be tested whether discrimination has taken place.
That was what we wanted to achieve by including in clauses 16 and 17 the test of reasonableness. However, a number of organisations, and several right hon. and hon. Members, expressed concern that the effect of the provision, even though it was drafted with the stated intention, would be to weaken the existing protection against pregnancy and maternity discrimination, which is not what we wanted.

Emily Thornberry: May I declare an interest as chair of the all-party group on maternity? I wish to express our thanks to the Minister for listening to the various groups and individuals who raised their concerns. I know that the change was made with the best will in the world, but it was thought that it did not go in the right direction. I am pleased that my hon. and learned Friend has taken the course that she has.

Vera Baird: As my hon. Friend has guessed, despite our original intention, we have acknowledged the unintended consequences. We do not believe that everyone will discriminate against women in such a way. None the less, one can envisage how things might go wrong.
We propose the amendments to remove doubts about the wording and to avoid risking the effective delivery of our policy, which is unchanged. We consulted business representatives as well as those who raised concerns, and everyone seems to be broadly content with the amendments. I hope that they will be supported by both sides of the Committee.

Lynne Featherstone: I rise briefly to say how much I welcome the Ministers recognition of the need to change the wording, which gave concern to a great number of organisations as well as to hon. Members. I am glad that the Government realise that it is most important that nothing creeps unintentionally into the Bill that could destroy its purpose.

Amendment 91 agreed to.

Lynne Featherstone: I beg to move amendment 223, in clause 16, page 11, line 22, leave out from if to A in line 23.

This seeks to probe why protection from discrimination on the grounds of maternity is restricted to 26 weeks under this section.

Ann Winterton: With this it will be convenient to discuss amendment 200, in clause 16, page 12, line 1, leave out subsection (4) and insert
(4) A person (A) discriminates against a woman if A treats her unfavourably because she is breast-feeding regardless of the age of the child..

An amendment to ensure mothers are protected against discrimination when breastfeeding even if their child is older than 26 weeks.

Lynne Featherstone: Amendment 223 is meant to probe the Governments reasons for restricting protection for discrimination on the ground of maternity to 26 weeks after conception. Amendment 200 does the same for breastfeeding after the age of 26 weeks. I wish to discern why, if the clause is about protecting women from discrimination, it is time limited. Surely the point of ending discrimination is just thatto end it.
During a brief discussion on breastfeeding in a previous sitting, the Minister said that it was important for women to breastfeed for six monthsI totally agree. All the clinical advice advocates breastfeeding for at least six months to give a child as much immunity as possible, particularly against allergies, and it obviously is the most suitable feed for the transition to solid food. However, I want to move away from the purpose of encouraging women to breastfeed. As the Minister said, if we name something in the Bill, that which is not named takes on a different import. Putting a reference to 26 weeks in the Bill would therefore give employers and others leave to discriminate beyond 26 weeks. I am sure that that is not the intention, but it gives rise to a concern. There should be no limit, and I do not want anyone to discriminate against a woman who is breastfeeding.
I understand that in Scotland this measure has teeth. If an employer discriminates in such a way, the law comes down on them very heavily. I should like to see us following in Scotlands footsteps in this regard. I hope that the Minister will clarify why 26 weeks has been put in the Bill. Outside, we are encouraging breastfeeding, so why are we giving leave to those who might wish to discriminate against women who breastfeed post-26 weeks? Surely that cannot be the intention of the Bill.

Vera Baird: We have discussed this matter before. Last Thursday, I think, an amendment was tabled to extend protection against maternity discrimination from 26 to 52 weeks. I will not wholly repeat my reasons for resisting the amendment, which was withdrawn, but they apply equally now. However, amendment 223 would have a much more dramatic effect. Without the proposed deletion, the subsection states:
A person (A) discriminates against a woman if, in the period of 26 weeks beginning with the day on which she gives birth, A treats her less favourably because she has given birth.
If the subsection is amended, it would effectively say, A person (A) discriminates against a woman if he treats her less favourably because she has given birth ever. The hon. Member for Oxford, West and Abingdon seems to be nodding his head in favour of that, but such an amendment would create a separate course of action, discriminating against a woman who may be 95 at the time because she gave birth when she was 17. That is going a long way.

Evan Harris: My nod was to my hon. Friend the Member for Hornsey and Wood Green, who asked me whether the Minister was right in saying that the amendment does have that effect. We have tabled a probing amendment on the time limit because our previous attempt to do that was lumped in with a group, so we did not debate whether six months or two years was the appropriate time. I certainly accept what the Minister says about the amendments effect, but the purpose behind itquestioning whether there should be a time limit as low as 26 weeksis what we hoped she would concentrate on, having made very effectively the point she has just made.

Vera Baird: Therefore, we will not accept the amendment. We introduced protection against maternity discrimination as part of the implication of the gender directive, which prohibits pregnancy and maternity discrimination in accessing and supplying goods and services, but does not define maternity. The ordinary meaning implies recent childbirth, as opposed to parenthood. The conjunction of maternity and pregnancy in the new directive also implies that childbirth has been recent. Maternity is intended to refer to a limited period of time after childbirth. We defined maternity as 26 weeks, during which time a woman is protected from unfavourable treatment because she has given birth. We are determined that 26 weeks is an appropriate period, for the reasons that I gave last week. In a nutshell, the first 26 weeks after childbirth cover the important first months when mothers are with their babies, during which time exclusive breastfeeding brings health benefits to both mother and child. The period also corresponds, as I said last week, to the period recommended by the World Health Organisation and the Department of Health for exclusive breastfeeding.
Breastfeeding is probably the most obvious feature of maternity. It would clearly be maternity discriminationunfavourable treatment because of having given birthto ask someone to leave a restaurant or get off a bus because she is breastfeeding. However, there are other aspects of maternity and other cases in which mothers should be protected from discrimination for a limited time, so if a landlord refuses to let a room to a woman with a three-month-old baby because he thinks that a crying baby would make it more difficult for him to let the other rooms, that is probably maternity discrimination as well.

Lynne Featherstone: I would like the Minister to elucidate why we have taken a different decision from Scotland. Scotlands provision runs to two years, which seems much more equitable. Is there a reason for that differentiation?

Vera Baird: Because we are right and they are wrong, basically.
Amendment 200 would prohibit unfavourable treatment of a woman because she was breastfeeding, whatever the age of the child. That is less draconian than the earlier amendment. It would, in a sense, be a protected characteristic all on its own, but in fact breastfeeding is, as I have set out, only one aspectalbeit an important aspectof maternity.
We favour supporting the period of 26 weeks with special protection, for the reasons I have given about bonding and the health advantages of exclusive breastfeeding during that time, but that does not mean that someone who is treated badly because she is breastfeeding a baby of over six months is unprotected. That will be direct discrimination on the ground of sex, as clause 13 makes clear. She will need a hypothetical comparator, but it is usually obvious that she has been treated less favourably than he would have been. There has been a successful claim of direct sex discrimination on exactly that basis, brought by a former mayor in Trafford, which as I recall was about breastfeeding in the mayoral limousine.

Evan Harris: I accept entirely that the Ministers motives are well meant, based on a point of principle and rational in respect of the exclusive breastfeeding period of 26 weeks. However, she has not made the case that legislationI think we agreed on this previously in respect of clause 1should be relied on to send a message about the importance of breastfeeding during the first 26 weeks. Indeed, legislation should not be used in that way, especially when there is a potential detriment, which is that the message might beif we are talking about messages, it can work both waysthat because there is specific, as she put it, protection up to 26 weeks, it only goes up to 26 weeks. Some people may feel that that is the case. I agree with the Minister that it does not only go up to 26 weeks, but the message sent by the legislation, which is not sufficiently justified in her terms, runs that risk. Therefore, there is a strong case for her considering carefully whether my hon. Friends amendment in this respect is betterand it replicates the situation in Scotland, I would hope.

Vera Baird: Well, it does not replicate Scotland. What Scotland has, as I have known throughout but skilfully kept from the hon. Gentleman for a few moments, is the Breastfeeding etc. (Scotland) Act 2005 to safeguard the health of children aged under two by ensuring that they have the right to be fed milk. It covers breastfeeding and bottle-feeding. Anyone who contravenes that law commits a criminal offence. I still think that we are right and they are wrong, but that is the difference.
This provision is not about sending signals exclusively; it is also about making a point of protecting the particular period that we think is so important. I am directed to draw hon. Members attention to clause 13(7), in which sex discrimination is defined to show that less favourable treatment of a woman includes less favourable treatment of her because she is breastfeeding. It also states that
in a case where B is a man, no account is to be taken of special treatment afforded
anyway, it does not matter about B in this case. The point is that sex discrimination is specifically set out to include less favourable treatment because of breastfeeding, so it certainly is not a case of no protection after six months. It is different protection but it is just as effective, for the reasons I have set out.
I hope, again, that hon. Members can be persuaded to withdraw their amendments on the same point that we discussed last week.

Lynne Featherstone: I shall reflect on what the Solicitor-General has said, but I am not totally at ease with the idea that a marker will be put down around 26 weeks. I have some concerns about that, but I take her point that the actual protection is there.

Evan Harris: I think it only fair to the Solicitor-Generals Scottish sister, Elaine Smith MSP, to point out that in her letter to us she states that the Scottish Parliament would, as the Solicitor-General said, recognise that the criminal law is not the best way of dealing with this issue, but that it did not have the power to deal with it in any waywhether at 26 weeks or two yearsthrough anti-discrimination legislation because it does not have the necessary powers to allow such a route to be pursued. It is only fair to point out that the Scottish MSP who was behind the private Members Bill accepts the point made by the Solicitor-General, but perforce had to handle the matter in the way that she did because of the powers of the Scottish Parliamentif it were to deal with the point separately. It might be argued that it should not have done that, but it did.

Lynne Featherstone: I thank my hon. Friend for that helpful intervention. I beg to ask leave to withdraw the amendment but may return to the subject later.

Amendment, by leave, withdrawn.

Amendments made: 92, in clause 16, page 11, line 23, leave out less favourably and insert unfavourably.

See explanatory statement for amendment 91.
Amendment 93, in clause 16, page 12, line 1, leave out less favourably and insert unfavourably.

See explanatory statement for amendment 91.
Amendment 94, in clause 16, page 12, line 2, leave out less favourably and insert unfavourably.

See explanatory statement for amendment 91.
Amendment 95, in clause 16, page 12, line 13, leave out subsection (7).(The Solicitor-General.)

See explanatory statement for amendment 91.

Clause 16, as amended, ordered to stand part of the Bill.

Clause 17

Pregnancy and maternity discrimination: work cases

Amendments made: 96, in clause 17, page 12, line 20, leave out less favourably and insert unfavourably.

See explanatory statement for amendment 91.
Amendment 97, in clause 17, page 12, line 23, leave out less favourably and insert unfavourably.

See explanatory statement for amendment 91.
Amendment 98, in clause 17, page 12, line 25, leave out less favourably and insert unfavourably.(The Solicitor-General.)

See explanatory statement for amendment 91.

Clause 17, as amended, ordered to stand part of the Bill.

Clause 18

Indirect discrimination

Evan Harris: I beg to move amendment 153, in clause 18, page 13, line 13, leave out a proportionate means of achieving a legitimate aim and insert
objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary..

This amendment aligns the legitimate aim test with one established in community law.
We come to a clause dealing with indirect discrimination. I am not sure how far we will get with it, but we will do our best to make progress while we still have time.
Amendment 153 is straightforward. It seeks to replace the test used for the legitimate aim with one that uses wording set out in community law. So, instead of
a proportionate means of achieving a legitimate aim,
we would insert
objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
We could have a long debate about whether the two sets of words amount to the same thing. In the view of the organisations that have contacted methey feel strongly about thisnot only is it better for us to stick to the words established in community law in this area and to seize the opportunity of this new primary legislation to do so, but also, the phrase
the means of achieving that aim are appropriate and necessary
is more helpful than merely talking about proportionate means.
The term proportionality is bandied about a great deal in this place, increasingly so because it is the language of parts of the Human Rights Act 1998, and because it is an important concept. Nevertheless, in this area, where careful judgments need to be made around indirect discrimination, as we discussed earlier, it would seem helpful to our courts, and to complainants and defendantsor whatever the correct terms are in employment tribunals and county courtsfor us to use the language of community law.
It is important to include the concept of necessity, which is not obvious in the word proportionate. The language for many Community law directives talks about discrimination being necessary as well as proportionate. I do not understand why the mother legislation that we have signed up to in the treaty uses necessary, as distinct from proportionate, if proportionate includes necessary. The Government have to have an almighty justification for not doing what the amendment suggests. I look forward to hearing the Ministers response.

Vera Baird: The point of the amendment is to change the wording from
a proportionate means of achieving a legitimate aim
to the wording used in the European directive. We do not think that we should do that; it is unnecessary and our phrase is better. The phrase in paragraph (d) has been used for a long time to describe objective justification in British law and its full meaning is well understood by courts and tribunals. Means that are proportionate must be appropriate and necessary, which are the words that the hon. Member for Oxford, West and Abingdon would include. Both concepts are included in the test that we have used, but they need not be necessary in the sense of being the only possible means of achieving a legitimate aim. It is sufficient that the means are not more discriminatory than any other means that could have been chosen to achieve the same end. Since the test encapsulates what objective justification is, the words objectively justified would add nothing at all.
There is a risk that changing language well established in British law could lead to an excessive narrowing of the scope of justification beyond what the directive requires, because that change could beand necessary has beeninterpreted very strictly by our courts. However, they are obliged to interpret the legislation compatibly with the directive and they know how to do that. In a nutshell, this is well-tried and well-used language that everybody understands. The hon. Gentlemans proposal adds nothing, so we see no point in the amendment. Therefore, we respectfully invite him to withdraw it.

Evan Harris: I think that we are going to have to agree to disagree on this, which leaves us with a stalemate. I simply disagree with the Minister when she says that it is not valuable to use objectively justified or the language of the directive in our terminology. I will reflect on what she has said about our domestic courts treatment of necessary and see what advice I receive. We may come back to this at a later stage. Since we cannot take it any further and the Minister has at least explained why she does not like it, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mark Harper: I beg to move amendment 9, in clause 18, page 13, leave out line 17.

Ann Winterton: With this it will be convenient to discuss amendment 198, in clause 18, page 13, line 23, at end add
(4) If the protected characteristic is disability, nothing in the section shall be taken to prohibit more favourable treatment of a disabled person on the grounds of the disabled persons disability..

Mark Harper: I should say at the outset that amendment 9 is a probing amendment so I do not intend to push it to a Division. I tabled it because, reading clauses 13 and 14 together, it was not entirely clear what additional protection for disabled people clause 18 brought to the table. It may be better to have all the protected characteristics listedand clause 18 may do no harmbut I would like the Minister to set out what it brings to the table that is not covered by clauses 13 and 14. Given that we have said that clause 14 may have to be reconsidered, it might be worth having that discussion.
I will speak briefly to amendment 198, because we have dealt with this issue and the Minister has been constructive. It would make the Bill state that there could be more favourable treatment in relation to the protected characteristic of disability. However, the Minister generously offered to work with the DCC to look at the wording of clause 13 and to return on Report, and this proposal essentially covers the same argument.

Vera Baird: Amendment 9 would remove disability from the list of protected characteristics. I know that the hon. Gentleman does not intend to do that, because it would be detrimental to disabled people and would deny them protection from indirect discrimination, as is the current situation. That is contrary to the key aim of the Bill, which is to strengthen protection where gaps exist and to streamline it. We are filling a gap by putting disability into clause 18. As we streamline the legislation , we are bringing disability into line with other protected characteristics.
As I have recently said, when we looked at the response to the Malcolm judgment, we consulted on giving protection from indirect discrimination. About half of the responses favoured that, but we were persuaded that doing so would not be enough. That is why we are introducing protection from discrimination arising from disability. We were also convinced that protection from indirect discrimination would help to prevent systemic forms of discrimination against the disabled. One can readily think of examples, such as an employer who makes a practice of requiring all management trainees to go on an Outward Bound course. That would be indirectly discriminatory towards a particular group of disabled people who work for the company. We think it is right to put disability in the clause to deal with such situations.
There is a draft EU directive that, if passed, as we think it will be, will protect people from discrimination on the grounds of disability, age, sexual orientation and religion or belief in areas beyond employment. That will cover access to goods and services and the functions of public bodies. It includes a provision that would require us to provide specific protection from indirect discrimination for all protected characteristics. That is still under negotiation, but the principle of indirect discrimination is well established and will inevitably go forward. We have included disability in the list to ensure that we give disabled people an appropriate level of protection and to meet that anticipated requirement.
Amendment 198 makes it plain that introducing protection against indirect discrimination for disability does not prevent disabled people from being treated more favourably. As the hon. Gentleman has acknowledged, we have gone over that ground. I hope that I can short-circuit the debate by saying that we agree that we must make plain the asymmetric approach towards disabled people that it is intended will be adopted under the Bill and that we will do that by redrafting clause 13. That is preferable to the adoption of amendment 198. If he is satisfied with that, I will not pick holes in the amendment.

Mark Harper: I am grateful to the Minister for that response. I am comfortable with her suggestion on amendment 198. As I said, we have discussed that issue and she has been constructive about how she will approach that by looking at clause 13.
Amendment 9 is a probing amendment. The Minister has explained what extra benefits disabled people will have through the inclusion of that protected characteristic in clause 18. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Evan Harris: I beg to move amendment 224, in clause 18, page 13, line 23, at end add pregnancy and maternity.

This is to probe why pregnancy and maternity are omitted from the list of protected characteristics for indirect discrimination.
The amendment probes why pregnancy and maternity are omitted from the list of protected characteristics for indirect discrimination. I understand that there is an argument that by definition it would be indirect discrimination on the basis of gender, but I would argue that it probably would do no harm to have a list that is consistent throughout the Bill. Therefore, the question at least deserves an answer that is not totally dismissive. In order to help us make progress, I will leave my remarks at that point.

Vera Baird: But the hon. Gentleman none the less answers his own question. A woman who is indirectly discriminated against because she is pregnant, or is a new mother would, by definition, be able to make a claim of indirect sex discrimination, since any provision or practice which disadvantages pregnant women or new mothers is disadvantageous to women. That is the current position and we are not aware of any difficulty, so we just go forward with the law as it is. I hope that that satisfies him.

Evan Harris: I note what the Minister says and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

John Mason: I beg to move amendment 37, in clause 18, page 13, line 23, at end insert
(4) If the protected characteristic is religion or belief, for the purposes of subsection (1), and subject to subsection (2), a provision, criterion or practice is discriminatory if it requires persons of Bs religion or belief to act in a way which contravenes the stated doctrinal or ethical teachings of the religion or belief..

Makes clear that requiring a person to act contrary to the accepted teachings of his or her religion or belief is a form of indirect discrimination. N.B. Indirect discrimination is still permitted if it is proportionatesee Clause 18(2)(d).
Like other Members, I am happy to make my arguments brief, especially as we have already touched on some of this. I thank the Solicitor-General for her assurances that she sees religion as one of the strands and that it is not being disadvantaged. It is good to have that on the record from her previous statements and I take those reassurances at face value. The point of the amendment is the link between religious belief and behaviour. We have touched on that, both in sexual orientation behaviour and with regards to religion. I argue that it is very hard to separate the two, although I accept that to some extent there are differences.
The point of how far the state should go in regulating a religion and religious behaviour is hard to determine, but we need to get the balance right. Clearly, there are examples of the state going too far and, for those who are familiar with the Bible and Daniel and the lions den, Daniel was told not to pray in public. That was going too far: he went into the lions den, but he was saved. At the same time, I completely accept that it should not be the case that every individual just claims religion as an excuse for absolutely anything. That is why we are not saying it would be a total exemption, but we are talking about things contravening the stated doctrinal or ethical teachings of the religion or belief, which I hope protects against people just having their own, individual, very strange ideas. That is probably enough just to make the point and I accept that this is building on what we have been saying before.

Evan Harris: I urge the Committee to reject the amendment, obviously in polite terms, in the spirit of the stage of the debate that we have reached. [Interruption.] For several reasons. [Interruption.] The hon. Member for Islington, South and Finsbury says that if I give reasons in a Public Bill Committee, that might make some Members change their minds. Well, they could do it on any basis, but it is important

Emily Thornberry: I do not want the hon. Gentleman to misunderstand me, but I just want to make it clear that he may well find that he is pushing at an open door. Perhaps we could, given the hour, appeal the light and go home.

Evan Harris: I take the hon. Ladys point, but I want to make a couple of brief points. It is not satisfactory to argue for special protection for religion while at the same time arguing that it should be treated the same in every other way. That is asking for special treatment on the basis of doctrinal and ethical teachings. In fact, religion already benefits, because political statements of view receive no protection at all under discrimination, whereas arguably quite contentious views founded on religion benefit from some protection albeit, as we know from our previous debates on direct discrimination, not as many.

John Mason: If the hon. Gentleman would like to introduce an amendment suggesting that political beliefs should be protected, I would be very supportive.

Evan Harris: The harassment provisions in employment give protection for the treatment of people manifesting their religion in a way that is not available for people who are manifesting their political, aesthetic or cultural opinions. Religion and, indeed, philosophical beliefit is not exclusive to religionis already given status. The hon. Gentleman need not worry that it is being treated like anything else. The fact that it is often in scripture or ethical teachings is, rightly or wrongly, acknowledged in the law. We should be careful; Scientology would be covered by his proposal, as would a whole series of other religions, sects and cults. The hon. Gentleman needs to be careful in what he is asking us to endorse. Secondly, his explanatory statement says:
Indirect discrimination is still permitted if it is proportionate
under the test which we have already discussed, however it is framed, of clause 18(2)(d).
Again, we have the same problem, as the hon. Gentleman cannot have it both ways. If the proposal means anythingand the requirement that the amendment should be subject to clause 18(2) is the relevant issueit does not add any additional protection and should not be accepted because it makes no difference. If it is his intention that subsection (2) should be diluted in some way, in respect of something that just happens to be
stated doctrinal or ethical teachings
then for the reasons I have given, I urge the Committee to oppose the amendment.

Vera Baird: I imagine what the hon. Member for Glasgow, East is looking for is legitimisation or conscientious objection, but the hon. Member for Oxford, West and Abingdon has put his finger on the point that clause 18 allows justification for something like that in some circumstances.
What the hon. Member for Glasgow, East seeks to say is that a provision, criterion or practice is discriminatory if it requires somebody of a religion or belief to act in a way that contravenes the stated doctrinal or ethical teachings of the religion or belief. From the point of view of protecting the religious, we do not think that that is necessary. It would be potentially unlawful under the Bill for a provision, criterion or practice to require an orthodox Jew to work on a Saturday, for example. The question would be whether such a requirement could be justified under clause 18(2)(d) in particular circumstances.
Specifying that one form of behaviour which is clearly covered by the definition is to be regarded as indirectly discriminatory is an odd thing to do, because it is already covered. As we rehearsed on an earlier provision, it may raise questions about others and it might be unclear whether a provision would be regarded as indirectly discriminatory if it contravened beliefs which are not doctrinally or ethically linked to a religion, but which are nevertheless commonly held. I think the hon. Gentleman is familiar with that argument. Putting it in a nutshell, this would muddy the waters, and it would not give any enhanced protection to the religious. The best way to deal with it is to put in the unamended definition of indirect discrimination, make it applicable to religion or belief as we do already, and that is that.

John Mason: I thank the Minister for her points and on that basis I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 18 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned.(Lyn Brown.)

Adjourned till Thursday 18 June at Nine oclock.